Belknaps and Bad Lawyers

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S1: The following program may offend those with delicate constitutions and.

S2: It’s Tuesday, February 9th, 20 21 from Slate’s The Gist, I’m Mike Pesca. Impeachment trial of Donald Trump, sorry, and impeachment trial of Donald Trump started today.

S3: Sequels are never as good as the original. This was closed on individuals, a tighter plot, higher stakes to the audience right there in the room, protagonists that seem unassailable.

S4: But then again, that’s what they said about the capital itself. And overall of it, an evil lurked. I can think, of no greater threat to the American people, no worse scourge on democracy, a pox on the polity. You know who I’m talking about?

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S5: The trial of former Secretary of War William Bell celebrated the house manager. Riley explained in the bill that he literally rushed to the White House. Belnap That case is clear. Precedent.

S2: William W. Belnap.

S4: I hate that frigging guy. So I guess the House managers did their job. Actually, Belnap was quite germane. The argument, dare I say, smokescreen of you can impeach a guy who’s not in office is answered by the case of William Belknap, U.S. Grant, secretary of war. And while Belnap ultimately walked, wasn’t convicted. Historians say, by the way, he got off on party lines. I say his copious facial hair thwarted eyewitness identification. It’s not as if the main argument for why the Senate couldn’t convict and disqualify an ex-president has no precedent. It does if you care to. Look, I’m going to say some some sides of this debate don’t care to that address to any imagined stumbling blocks from a historical perspective. As for other possible objections to imposing the penalty of disqualification from future office, Representative Joe Nagy’s of Colorado was really persuasive. He walked the senator jurist’s through the text of the Constitution. Like this part, judgment in cases of impeachment shall not extend further than to removal from office and disqualification to those who hold any office. So does that tie removal to disqualification? Nickie’s explained it does not.

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S5: The meaning is clear. The Senate has the power to impose removal, which only applies to current officials. And separately, it has the power to impose disqualification, which obviously applies to both current and former officers. But it doesn’t have the power to go any further than that. Now, as I understand President Trump’s argument, they believe that this language somehow says that disqualification can only follow removal of a current officer, but it doesn’t. That interpretation essentially rewrites the Constitution if it adds words that aren’t there. I mean, after all, the Constitution does not say removal from office and then disqualification. It doesn’t say removal from office followed by disqualification. It simply says the Senate can’t do more than two possible sentences, removal and disqualification.

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S4: Nagy’s mentioned that every legitimate constitutional expert agrees that Trump could be disqualified from future office.

S5: Given all of that, it is not surprising that in President Trump’s legal trial brief 75 page brief, they struggled to find any professors to support their position.

S4: And there you have it. Take it all in one. It’s an appeal to reason, to reading, to historical facts, to expert opinion, a careful, rational argument delivered in calm, steady terms. In other words, the argument least likely to convince any Republican elected official to change his or her mind. Oh, by the way, Nagy’s is also the first African-American elected to Congress from his state. Wait, you’re saying that also doesn’t help? It hurts. Tough crowd. The only reason I mention the words are that the day was dominated by images. And there really is no reasonable rebuttal to the tape that the Democratic House managers played of the assault on the Capitol and the words from Trump that day. But this isn’t about reasonable rebuttals. This is an impeachment trial. And in the spiel, I shall dissect the defense who kicked up some dust to the point where it may have gotten in one of the lawyers eyes. But first, we’re joined once more by Dr. Abdul Elsayed, who was executive director of the Detroit Health Department. He’s now a writer and host of the American dissected podcast, Abdool El-Sayed on Big Pharma and the Pandemic.

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S6: Up next.

S4: We’re joined once more by Dr. Abdul El-Sayed, with whom we talked about vaccinations and wealth yesterday. Today I began by asking him and by the way, he ran on a Medicare for all platform. He’s now out with a book of that name. So I wanted to talk about the regular criticism of pharmaceutical companies in 2019. A Gallup poll said that the pharmaceutical industry was the least popular industry in the United States, and that’s why criticizing them during political rallies always got a great response, especially among left or liberal Democrats. But now it’s not as if trust in the pharmaceutical industry has spiked through the roof, but it has gone up a measurable bit. Edelman does these research surveys. They find that trust in the private sector in general and pharmaceutical companies specifically is comparatively high. So I asked Dr. al-Said, is it going to be as easy as it once was to lay into drug companies if we get past the pandemic? Because we will have gotten past the pandemic, thanks in large part to the efforts of these companies.

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S1: I want to make sure that we are recognizing the system and not just the industry. Remember that a lot of the investment in the pharmaceutical industry is capacity to research and develop and then ultimately deploy. A vaccine came from we the taxpayer came from government, right? Ten billion dollars invested in the research and development. The Moderna vaccine, for example, it was developed. Most of the science was developed in a National Institutes of Health based laboratory. Right. So this was the federal government operating to prop up the capacity of pharmaceutical industries or pharmaceutical corporations that have long since actually gotten rid of the research and development arms because they’d much rather just buy biomedical companies that are on the cusp of a new development and then take them from there. Right. So that’s that’s number one. Number two, though, I do think it is a moment where these corporations have finally done what they were supposed to do and then. Right. And then right. They were riding high on the public goodwill. And then and then you have a situation where Pfizer, for example, comes back and says, well, the good people who are deploying these vaccines found that they could squeeze a sixth vaccination out of a five vaccine vial. So what we’re going to do is we are going to count that toward our two hundred million dollar dose and charge you for it. Right. And here you go, pharma doing what pharma does. And and so I do think that we can walk and chew gum. We can appreciate that the pharmaceutical industry did in some respects the thing that they were supposed to do. But in large part, as they always are, they were subsidized by the federal government. Want to take all the credit for the outcomes and on the back end are trying to extract as much money as they possibly can, because pharma, again, is a large, profit motivated industry that has tight control over some of the things that we need most in our lives, which are the medications that keep us alive.

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S2: Right. Well, that’s a good example. That’s about the aspiration of the needle that depending on the method of injection, there is an extra dose in there. Is that right? The aspiration? Exactly.

S1: The drug that they’ve started to deploy, these very special syringes that can get the extra dose out based on these vials? Are are there vacuum sealed? Right. And so you have to stick a syringe in there, take pull the medication out and you replace it with air. But if you have a special kind of needle, there’s actually a little bit left over, which is enough for a sixth dose, you know, and pharma, despite the design flaw. Right. Are now trying to take advantage of it and profiteer off of it.

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S7: Oh, you’re thinking it’s the way I read that story as well. If it really is a six dose and they contracted for this many doses and depending on the methodology of extracting it, why shouldn’t they get credit? And, you know, it’s going to go in a sixth more. Well, let me do the math. Right. It’s going to go into the arms of 20 percent more people. Why shouldn’t they get credit for that?

S1: The other side of that, though, is to say they did it by accident and they were planning to produce more and more in the middle of a national catastrophe where we need every single dose we can get. So now, right, they’re planning basically failed to account for this in the first place. And then they’re trying to use their own mistake. Right, to get themselves out of producing 20 percent more vaccine, which is something that the public needs in which is something that the public needs very quickly right now.

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S7: When was the last time you give someone a shot? Oh, man, not since med school. OK, because I have also been reading that nurses are saying, you know, what are you talking about? Everyone everyone knows that. We all know one uses the old kind of needles. This was eminently foreseeable.

S1: It’s true. But they didn’t plan for it. Right. And that was never a part of their plan. And so even if it was imminently foreseeable, you would expect the corporation to foresee it. And they failed to do that. And now when actual nurses on the ground heroically trying to pull as many doses as they can out of the vials they have find it. They’re now trying to they’re now trying to take credit for it and buy themselves out of producing 20 percent more vaccine, which they were supposed to produce in the first place.

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S7: So I understood it was a good answer to the question about, you know, is big pharma less of a boogeyman than it was before? So I want to ask you to put on your politician hat or someone who advises politicians hat. Do you think, even though your long explanation not that long, but your reasonable explanation would hit my ears or the ears of someone who listens to such a podcast and perhaps convinced them that if you have to tick off the elements of a stump speech, Big Pharma goes somewhere down the list because of our experience during the pandemic. Hmm.

S1: I would argue that that at this point and I’ll say this, actually, I’m taking my politician hat off and I’m going to put on my public health practitioner hat going after Big Pharma right now when we’re trying to convince people to take the vaccine isn’t the most important and probably not the most advisable thing to do. But it is over the long term, really important for us to get right, because unfortunately, one of the things that we keep seeing in our society is that we keep deconstructing our public health infrastructure because we don’t have the money to pay for it. And giving big corporations like the pharmaceutical industry tax break after tax break and then asking why we can’t we don’t have the money to invest. And so I think it’s important, right, to get past some of these talking points, which are right at this point for a lot of reasons. It’s not the thing you’re going to harp on, but get past some of these talking points and start analyzing the system that gets created in the way that we make decisions about where we where we allocate resources. And, you know, the great paradox of all of this is that, yes, the pharmaceutical industry, with the vast support of the government, was able to create a new vaccine soup to nuts in less than a year. And that is a huge, you know, really breathtaking scientific achievement. But on the back end of that, it all got it all got flummoxed because we didn’t have the infrastructure to be able to deploy those vaccines into arms in any reasonable time line. So all of this is to say that our society, right when we think about it, it’s not just about the heroes and the villains. It’s also about the system that is created that allows us to achieve the outcomes that we want when we overvalue private industry and a sector in particular, like the pharmaceutical industry over what government can, must and does do every single day in ways that really do protect those who are the most vulnerable.

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S7: When you side at the beginning of that question, was it that you were thinking or frustrated?

S1: I was thinking and also I’m frustrated, right. And because, you know, what tends to happen here, right, is pharma. Pharma fucks up all the time. They lobby for lower taxes. They lobby to keep raising the rates. They lobby so that they don’t have to negotiate with the government. And they do one thing right. And now all of a sudden, we want to call them heroes. Right. I just it’s very frustrating, right. Because it leaves us forgetting about the full system that has been created, that has led us to such failure in the moment of this pandemic. And I am never going to be someone who is comfortable calling the pharmaceutical industry any kind of hero. When I’ve had to look people in the eyes who can’t afford their insulin and tell them that that there’s really no reason why, except for some CEO thinks that their bonus this year should be just a couple of dollars bigger.

S7: Yeah. So the last thing I want to ask you about is a gigantic thing, and it’s the racial and ethnic disparities of who is suffering and who is suffering the worst from this pandemic. And this is such a huge thing. Let me just weigh in with an unbelievably unfair wallop of a question. But to what extent do you can you decouple the wealth and class considerations and disparities from the racial disparities? How much of what we’re seeing of the racial disparities is explained by wealth and lack thereof?

S1: Well, the way I would answer that question is to say the wealth and lack thereof is explained by racism. So in the end, it just comes back to racism, right. Because it’s either racism today and this is the mistake we sometimes make when we talk about racism, we think about racism. As my friend, Dr. Mary Bassett, who is the former health commissioner in New York City, would call it a thousand private discriminations. No, racism isn’t simply that in that. It is it is also the historical consequence of thousands upon thousands upon thousands of discriminations that require access to basic resources, including at a point in this country which was legal, the very use of your own body for your own gain. Right. Which is, of course, what what what enslavement is. Right. It is the consequence of all of that in patterning access to resources that shape the poverty that we see every single day. And so, yes, racism at the point of of interaction happens today. Yes, of course it does. But that’s not the only racism that is shaping the disparities in covid-19 and access to vaccines that we’re seeing right now. It is the historical consequence of of racism. And just one one simple example, right? When we think about segregation in our country, that didn’t just happen. Right. It was a matter of public policy in this country that during the New Deal, you could not get an FHA loan if you were black and brown. And so we saw a disproportionate disinvestment from black communities where people were segregated because they could not buy homes in certain communities and could not get a loan, a government subsidized loan in the communities in which they could buy homes, which meant that over time, the value of certain neighborhoods started to decline and others started to increase. And now, right when we think about how we fund public schools, we fund public schools based on the value of your home property taxes, which is just carrying over historical public policy based discrimination from the past and shaping it into what we always call the engine of social mobility, which is our school system, and allowing it to just simply pattern the same system and perpetuate the same system of structural racism. And so you can’t decouple of these things because they’re mutually entwined, they are causally correlated and all of them, rather, it’s the consequence of structural racism, history or the consequence of institutional and individual racism. Right now, all of them are rearing their ugly head and showing the coronavirus exactly where to go to hit the most vulnerable people.

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S7: So as I think about that, the factors, the medical factors causing black and brown communities to be especially vulnerable are, of course, explained by policies, American policies, American attitudes, American history towards race. And yet here we are today in the middle of it. And we’re not going to solve these problems on the timescale that the that the virus demands. So there are some calls to immunize black and brown communities sooner, perhaps taking into account perhaps when you have to prioritize letting a 55 year old black man get the vaccine before a 70 year old white man, is that the way to do it? I mean, it’s true. Everything you’re saying is true, but if you have to put together a triage list, how can you or should you fairly take that into account or should you just go down the list of likelihood to die within the next six months?

S1: Well, what we’re seeing is, is actually that that seven year old white man is more likely to get his vaccine than the seven year old black man. Right. That that’s what we’re seeing right now as a culture of racism. Right. So, yeah. You know, and I think if it has to do with the neighborhoods of where each of them live. Exactly. Exactly. And so what I’m asking is at least we need equity, right? Not just equality. We need equity. We are going to have to work harder to get vaccines and good information out into predominantly black communities to account for the structural and material consequences of racism throughout history. That’s what I’m asking for. And then beyond that. Right, even if you look at the probability of a seven year old white man to die versus a 55 year old black man, unfortunately. Right. You’re not comparing just a 75 year old or a seven year old to a 55 year old. Right. Because we know that black people in this country have been have been two to three times as likely to die of covid-19 than white folks. And so if you really are triaging according to risk, right. The risk borne by a black person in this country versus a white person is a lot higher. And yes, of course, we have a responsibility to allocate our resources where there is highest risk. And so not only are we failing to do that, but in fact, right now our resources are going to folks with the greatest set of resources that are already protecting them from getting covid-19 in the first place as they do as as always happens, given the, as always ization of our society here.

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S4: Abdul Elsayed has a substance called The Incision. His book on Medicare for All is out now. He was the former executive director of the Detroit Health Department, and he, of course, has a podcast on Quirked Media America Dissected.

S1: Thank you so much, Mike. Thanks for having me. And thanks for a stimulating conversation and hopefully a conversation that forces folks to think about where we need to go to be able to really get to equity in our society.

S2: And now the spiel, there are good arguments and bad arguments, winning arguments and losing arguments, but also useful arguments and useless arguments, today, Trump’s defense lawyers put together bad arguments. I don’t think they were useful in terms of changing minds or giving minds that will never change a new justification they can cite. But that doesn’t mean Bruce Castor and David shewn made losing arguments. There was probably nothing they could have done to lose the overall argument, but they did seem intent on testing that premise. Lawyer Bruce Castor, in a suit a size too big, said the prosecution’s argument was good. Good of him to admit that it’s true. And Castor then threw out his prepared remarks so he could just wing it a little. Politics, politics, politics. Anyone here from out of town you saw down front? Chuck, where are you from? New York. To guess that aboard Urgers over there laughing it up. Lady from Alaska is like totin here, bald guy down front, like what I do. Kastor did riffe his way into what I thought was the greatest explanation of the based Trump administration. It wasn’t the case that Trump was a murderer.

S8: You know, and we know we have a we have a specific body of law that deals with passion and rage, blinding logic and reason. That’s the difference between manslaughter and murder. Manslaughter is the killing of a human being upon sudden and intense provocation. But murder is done with cold blood and reflective thought. We are so understanding of the concept that people’s minds can be overpowered with emotion, where logic does not immediately kick in.

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S2: You see, it was manslaughter. That’s all it was. Don’t convict Trump of murdering the people who died during the election or even doing the coronavirus. He does manslaughter to them. I think Trump would probably cop to that. He’d say, well, what slaughtered a man? First syllable man stopped listening. After that, I’ll take it. Castor spent most of his time just buttering up the jury. He admitted, you know, to me, too, it’s a little embarrassing to kind of say this out loud, but I’ve always had kind of a thing for senators. I grew up listening to their records and then I got older and I got to meet them. I mean, they’re really smart and pretty and like, just so amazing.

S8: United States senators have a reputation and it’s deserved. They have reputation for cool headedness being area.

S2: They can define erudite, for instance, not done acting like a furrier with an all access pass at Disney World, Kastor extended on the riff of the glory. That is a senator.

S8: You know, it’s funny. This is an aside, but it’s funny you ever notice how when you’re talking or you hear others talking about you when you’re home in your state, they they will say, you know, I talk to my senator or I talk to somebody on the staff of my senator. It’s always my senator. Why is it that we say my senator? We say that because the people you represent are proud of their senators. They absolutely feel that connection of pride, because that’s not just Pat Toomey of Pennsylvania. That’s my senator from Pennsylvania or Bob Casey from Scranton. That’s my senator. And you like that.

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S2: You ever notice people don’t say a pillow or and pillow or that random pillow from Pennsylvania or some headrest and puffy thing from Scranton? It’s always my pillow. And do you want to know why they say my pillow? I think it’s because people know that other pillows were stolen by the Chinese.

S9: Well, first mine was taken down because we have all the election fraud with so many machines. We have a 100 percent proof.

S2: Mike, Mike, Mike, Mike, I’m going to have to stop you there and please, no talking machines, but we’ve got to get back to Bruce Castor, who I have to say left most of the truly wack a doodle stuff to his cocounsel, David Shewn, who ended up weeping over Longfellow like a 19th century dandy overcome by the grip casters ridiculousness, was in the paucity of counter evidence to the most serious charges. His whole defense was basically senators are smart and great and smell real nice, too, but also that the American people spoke and voted out the big manslaughter in Lugg, vote them out of office. So really, what’s the harm in letting them run again unless our current legislators. I have so little faith in the public’s wisdom to just vote against Trump the next time.

S8: Why are they afraid that those same people who were smart enough to pick them as their congressman aren’t smart enough to pick somebody who is a candidate for president of the United States? Why fear that the people will all of a sudden forget how to choose an administration in the next few years? I actually have an answer to that.

S2: It’s not that we, the American people, the people who want Trump disqualified from office, not that we’re afraid that. But for disqualification, Trump will win the presidency. It’s the fear that in the pursuit of that end, he will wreck the country, just like it’s not as if the U.S. military really was worried that ISIS was actually establish a 13th century caliphate in the Levant. It’s just that the pursuit of that end would cause a lot of destruction along the way. Think of this action that the Senate could take disqualification. Think of it as a prophylactic, a means of not having to go through another abortion, of a campaign and God forbid, an election. Donald Trump knows about that anyway. That’s the real answer to the real question. A real question. Why even having to go through with disqualification, they got to say, wasn’t presented in bad faith, but it was put forward to an audience that I fear is not going to change their minds at all except to maybe say, dang it, you’re right, you won me over. I am pretty great. I’m a U.S. senator.

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S3: And that’s it for today’s show. Jane Arraf is my guest producer. You know, I say my producer and not just some random producer of Jesty and podcasts out there producing her way throughout the landscape. You know, I see that. I’ll tell you why I say that, because that’s how pronouns work. Margaret Kelly is the other just producer. She always says, my senator says my president during the Trump presidency was my president, just like her grandma says, my sciatica is acting up. And that lady on the bus says way too loudly, my bunions are aching. Which Montgomery, executive producer of Slate podcasts, wasn’t that critical of Belnap. But let’s be real. That man could not hold a candle to Grant’s other secretaries of war, Alfonzo, Alfonso, TAFTA, Jay, Donald Cameron. The gist. OK, you’re thinking that’s what happened to Belnap. What about Mrs. Belnap? I shall now read from the biography of Belnap. Amanda had her own money and could afford the good life and intended to re-enter society. By leaving Washington and her disgraced husband, she and Belnap would remain married and would see little of each other. Amanda and their daughter Alice would spend the next few years at the Grand Hotel in the Catskills, the Oriental Hotel at Coney Island and the Victoria Hotel in New York City. Periodically, the newspapers would provide a brief mention of Amanda when she attended a gala ball or was part of a bon voyage party. Newspapers of that age with scintillating coverage, I suppose. But here is the detail that caught my attention. Amanda also drew attention when she created a minor scandal by appearing at Coney Island in a risque bathing suit that had a short skirt and left her arms exposed. And that from the sensitive and poignant biography William Worth Belnap, an American disgrace. I will tell you where the author comes down. Edward S. Cooper, author of William Worth Belnap, An American Disgrace, Super Duper. And thanks for listening.