Are Criminals Getting Worse? Why?

Years ago, I was given the opportunity to share my hard won insights about why criminals are getting worse with a graduating class of freshly minted peace officers.

As most of my readers know, I left my “life of crime” after a number of years of service in order to honor my creative and civic pursuits. I had served in the capacity of an Assistant Public Defender in the Alameda County Public Defender’s Office – headquartered in Oakland, California – as trial lawyer, appellate lawyer, training director, branch office supervisor, and so on, for most of my career since law school.


One day, when I was in the middle of a very long murder trial, the County Board of Supervisors picked me to succeed chief Public Defender James Jenner, the Sixth Public Defender, who had just retired. I became the county’s  Seventh Public Defender, inheriting a legacy that began in 1927 when the Chief Prosecuting Attorney, Earl Warren, recommended that the county start a public defender’s office.  As he put it, poor defendants get the shaft, while a million dollars can buy an acquittal.  Warren was no bleeding heart but he had a passion for fairness.

As a result, the second oldest official Public Defense institution in the world came into being, born of the conscience of a prosecutor. This was the same Earl Warren who later was California Governor, then Chief Justice of the United States Supreme Court. The first Public Defender was one of Warren’s top trial lawyers, reassigned to guarantee a strong defense.

Decades later, I made it my goal to make certain that my office provided  poor defendants with the most professional ethical, hard hitting and ethical defense team in the country. Early on, I made alliances with the District Attorney, the Sheriff and the Chief Probation Officer on funding issues. We were, as I argued, essential parts of a large interacting justice system, one that would benefit from a common front, especially during tough fiscal times. I also made it a goal to further mutual trust relationships within the adversarial system in the service of justice.

Peace Officer Standards and Training (POST) is the official gold standard of law enforcement training and education. Not every police agency is able to run a POST  training facility.

But the Alameda County Sheriff did and does.


A legendary County Sheriff, Charles Plummer, served during my Public Defender career, and it was an honor to know this tough, ethical law enforcement official.

So it was a special honor when I was the first Public Defender invited to give an commencement address to the Sheriff’s POST Graduation event. The event was attended by the County Board of Supervisors, the Sheriff’s Command Staff, the POST graduates and their families.  The full text of that speech follows:

An  Address to the Alameda County Sheriff’s 102nd Graduating Academy by Jay B, Gaskill, Alameda County Defender.


Congratulations on completing POST training and entering law enforcement.  It was an honor to be invited to speak here this morning and a pleasure to be able to accept.


Over the last twenty years, I have had the privilege of working with some really exemplary law enforcement officers employed by this sheriff’s Department, men and women from the deputy level through every rank and posting.  And I can tell you without reservation that you are entering the finest sheriff’s Department in the State of California, serving under the finest Sheriff in Alameda County’s history.


Your learning curve has just begun.  Whether you are assigned to patrol, to a jail, to transportation, or to a courtroom, you will immediately discover that you need to know more than you ever thought you would about the courts, the law, and the criminal justice system.  Remember this – the criminal justice departments form an interacting system, a system that is no healthier than its weakest component.  It is, in effect, a huge sorting mechanism which is tasked to separate the criminals from the victims, the guilty from the not so guilty, the bad cases from the good cases, the heavy cases from the cheap cases, the manageable prisoners from the unmanageable, the deserving from the undeserving, and the short timers from the long timers.


You will quickly learn that the judges and the prosecuting attorneys you will deal with tend to spend comparatively little time in close contact with the county inmate population.  You will also quickly learn that there is one department, one group of county employees, more than any other besides your own, that spend comparable face to face, quality time with the same inmate population that you see day in and day out  – the attorneys of the Public Defender’s office.


Over time, you will see many of these jailed defendants as interesting and sometimes complicated people.  You will be hassled, cajoled, assaulted, complemented, bullshitted, begged, amused, aggravated by them.  You will find some of them to be appealing characters, just regular men and women who are caught up in a large impersonal machine, and others to be classic assholes for whom flunking the attitude test was just the first in a series of life’s lessons ignored.


And I can tell you from personal experience.  Been there.  Done that.  I’ve defended them all, the druggie, the killers, the petty nuisance, the third time drunk driver with a job and a family to support, the combat veteran with a massive addiction, the pregnant prostitute, the nineteen year old kid who got caught in something that got out of hand, and the hardened sociopathic crazy who puts me, you, and everybody in the system at risk.


Hopefully, you will come to see, as I have, that the value of punishment and the possibility of redemption are linked with each other.  Almost everybody you meet in custody has a story.  Some of these people can be saved, and some of them will never find their way out.


When I was first a Public Defender attorney, twenty six years ago, it was our practice to conduct client interviews inside the old Santa Rita.  You may have heard the stories about East Graystone and West Graystone which were sub standard maximum security cellblocks, and the Compound, an open area where housing units contained military style barracks.  We would show up in the morning with a stack of blank interview files, be admitted to the Compound by ourselves, and the prisoners would line up and talk to us in the living units or outside in the open.  This practice wouldn’t be acceptable today.  Moreover, it now would be more dangerous.  Have times changed that much?  Yes, they have.


I can tell that the nature of the jail population has changed.  This, on average, is a more dangerous group of people.  It is important to ask ourselves — Why?  Are conditions that much worse?  What in the world is going on?


Not so long ago, I was walking back from the North County jail where I had seen a murder client.  Just behind me on the sidewalk was a woman in her twenties and her child, a girl about nine or ten.  The pair had obviously just visited a prisoner charged with felony assault.  “See,” the mother was saying to her girl, “if you cut somebody, you can end up in there.”   Now I want you to stop and think about that exchange, which, to me, spoke volumes about the deteriorating condition of our society.  The tone of the remark was flat, conversational.  There was no sense at all that the woman was communicating an event of moral significance.  It was as if she had said, “See those weeds, if you don’t cut the grass, that’s what your lawn will look like.”  The content of the remark was cooly practical, without moral judgement, something of the order – “If you go 45 on that street you will get a ticket.”


Now put yourself in that conversation.  You are talking to your own kid.  Someone you both know has knifed somebody and is in jail for felony 245.  Imagine what you would say and how you would probably say it.  First, consider your tone.  You would feel a gut reaction to the event, a sense perhaps captured in the “My God, how could John have done that?” or “I hope you never hang out with him!”  Every part of you would tend to communicate to your child that the act of assault itself was wrong.  Whatever your words, you would be speaking in a context in which the given was  –   We don’t do that. It is wrong.  What disturbed me about that mother’s remark is the context that it revealed, a context in which basic morality was simply absent, just as if you were talking about color to a blind man.


I contend that this was not an isolated sample from an atypical population.  This is like finding dry rot and a termite in your kitchen floor, then finding telltale powder along the bedroom walls, and in the bathroom.  There never is just one termite.  And make no mistake, this is our house we’re talking about.  My contention is that the foundations of civilization are being eaten away by something very sinister, something, that, in modern terms, is very much like a computer virus.  Let me explain.


It has been frequently argued that the continued existence of civilization depends on the rule of law.  That is true.  It is like saying that a house requires a foundation.  But that is not the whole story.  The rule of law itself stands on two pillars –  ultimate right and wrong, and legal integrity.  If either of these pillars is seriously weakened, then the whole structure tends to collapse.  These pillars are the general popular acceptance of two propositions:


(1) Ultimate right and wrong:  This is the idea that there is a higher source of morality, of right and wrong, that comes from an ultimate authority, a more objective, more powerful and more permanent basis for morality than mere human convention or invention.


(2) Legal integrity: This is the idea that the law, however imperfect it may be in detail and application, is based –  at least in its core content – on the ultimate right and wrong, and that the law, as such,  is as binding on the people who administer it as it is on the population at large.


Ultimate right and wrong and legal integrity.  These are the two pillars of law and civilization.  If they fully ever give way, civilization is over.  And you, the graduates of the Alameda County Sheriff’s one hundred and second Basic Academy, are on the front lines in a struggle to save civilization.  So, maybe a word of explanation about the value of civilization is in order.


First, some history.  There were two distinct times in this century when these twin pillars of civilization were profoundly weakened.  In 1917, in World War I pre-Communist Russia, the old order fell apart, the Tzar was removed from power.  Exhausted troops returned from the front.  Civil authorities tried to make democracy work, but they were irresolute.  Basic ideas of right and wrong were called into question and the law was ignored by those who were charged with its administration.  In 1932 pre-Nazi Weimar Germany, similar conditions occurred. The poisonous idea that morality was just a convenient fiction invented to keep the masses in line ran through intellectual circles like a computer virus.  The democratic authorities were confused, weak in their convictions and irresolute in action.  In both societies, Russian and Germany, homicidal tyranny followed.  Stalin and Hitler killed millions.  The horrendous negative consequences lasted generations.


Second, let’s fast forward to the present.  I believe we are at war.  We are facing a threat to the protecting web of traditions, relationships and institutions that provides order and predictability, that sustain the very environment necessary to allow our children and their children to live safe and productive lives.  Civilization is history and respect for history.  It is future and the respect for future. Protecting civilization is what you do.


When I talked about the twin pillars of civilization, the universal nature of morality and the integrity of law and justice, I did not mention money, and I did not mention jobs either.  I did not mention economic poverty.  That omission was intentional and I’ll return to that idea in a moment.


Those of us who have been paying attention to the history of the last thirty years have reason to be worried.  We have good reason to be concerned about the future of civilization and particularly concerned about the future of our local corner of civilization, the part that impacts our loved ones, our neighborhoods, our communities.


In large parts of this society, the moral compass is broken, in others, people wouldn’t know north from south because their compasses point only in one direction — immediate, predatory self advantage.


I believe that we are now and have been at war ever since the first fool who claimed to be a philosopher declared that morality was just an invention. That idea has eaten its way though the social fabric with the same effect as a computer virus corrupting an irreplaceable data base.  Those who believe in and support the pillars on which law and civilization rest are surrounded by millions of gnawing rats, of misguided intellectuals, and reckless idiots who are like the drunken sailors who build a bonfire in the hold of a wooden boat.


Let me give you eight examples of how one can light a fire in the bottom of a wooden boat:


  • Everybody does it.


  • She had it coming.


  • Hey, it was cool – they’ll never miss it.


  • Nobody’s going to find out.


  • Money can buy anything.


  • Only an idiot would tell the truth about that.


  • I had no choice.


  • Right and wrong? Get real!


Obviously this is an incomplete list, but you get the idea.


What makes a gradual moral deterioration like this dangerous is when there is nothing to stop the slide.  How many of the people under 25 in high crime areas actually believe that there is an ultimate right and wrong?  How many well-off latch key kids living in the suburbs do?  Go over the list of eight excuses, imagining you are conducting a poll.  The suburbs are a war zone, too.


This is not a pitched battle.  The lines are not clear.  You can’t walk two blocks in an core urban neighborhood or read two pages in a popular newspaper without encountering the enemy.  But apprehended and un-apprehended criminals themselves are just the sideshow.  Like the fever in the early stages of a septic infection, criminals are a consequence of the deeper sickness.  You take an aspirin, you fail to treat the disease, you feel better for a little while, then you die.  Money alone, whether given directly or in the form of free services, however important, is the aspirin.


This is a battle about the drop out of an entire moral framework.  I’m not talking about “moral compromise” here.  That implies  –  even requires  –  the existence of a moral framework in the first place, something to compromise from.  When I said earlier that I believe in the possibility of redemption, I was using the term very carefully.  Redemption requires recognition that you have committed a wrong.  If you lack the moral framework to recognize that you have committed a wrong, then redemption is technically impossible.  When we are talking about the complete absence of a meaningful moral framework, that is scary.


When I talked about a war, I wasn’t using hyperbole for effect.  I was serious.


This is, at its very root, not an economic problem, except to the extent that the abuse of large sums of money furthers the perception that all government and its system of justice is corrupt, a perception that has long lasting and tragic street consequences. No, I contend that the main cause of crime is the erosion of those two underpinnings or pillars of civilization I mentioned, which boil down to a belief in ultimate right and wrong and respect for that law and its institutions.  To blame economic poverty is to insult the honest poor.  We have always had poor folks.  The poorest parts of our society live at an economic level that by 1930’s depression standards would have counted as comfortable middle class.  And yet the crime rate  – especially of violent offenses – in the hardest hit depression areas in the United States in the 30’s was roughly comparable to our safer modern neighborhoods.  Crime breeds in an environment of poverty all right, but it is moral poverty, not economic poverty that is the fundamental issue.


So what can we do?  Sermonize at the prison population?  Not such a bad idea by itself, but I wish it were so easy.  You will find that in dealing with an inmate defendant population, as I have, the practical, low risk approach is to adopt a non-judgmental attitude.  It’s a little like the medical model.  The doctor doesn’t typically look at a gunshot victim and say – “You dumb asshole, what were you doing in that bank with a gun?”  And, frankly, Public Defender’s don’t often approach a client interview in that spirit either.


You will also learn that the easy prisoners and the difficult ones do not automatically sort out along lines of the seriousness of their cases.  That nice guy killed his wife.  That asshole stole a tire from Big O.  Go figure.


What can you do?   Be aware of the problem.  Know the nature of the war.  Be sure of your own ground.  If you conduct your life with integrity, if you believe in right and wrong, and in the essential value and soundness of our laws and legal institutions, if you are not ashamed or embarrassed by your beliefs, that will come through in a hundred ways you are not even conscious of.  If you accomplish nothing else but to do your job well and allow yourself to reveal that there is moral ground in your life and you are standing on it, you will advance the cause.  You can’t throw a lifeline if you are drowning yourself.


We are all soldiers in this war.  And our weapons are our beliefs, our integrity, the quality of our lives, and the quality of the relationships of the people we deal with.  And with your help, the good guys will win.


You have chosen an important calling at an important time in history.  Don’t let it end at the conclusion of your shift. Get involved in your community and stay in touch with the people you have sworn to serve and protect.  You owe that to your family.  You owe that to yourself.



If you lacked basic respect for the law, if you didn’t care about the future, if you thought that morality is just something some old dudes made up, you wouldn’t be in this place at this time celebrating this graduation.   Looking over this group, seeing your faces, and knowing the quality and the esprit of the institution you have joined, I know you picked the right job.  And I can tell that the Sheriff and his staff have picked the right people.


Sheriff, you have done very well with this graduating class indeed.  Congratulations and Godspeed.


I salute you.


Jay Gaskill has a major novel coming out. Read more at


A version of this was published in The Post Register on May 20, 2016.



Jay B Gaskill
Jay B Gaskill


When the Irish poet William Butler Yeats wrote “Turning and turning in the widening gyre, the falcon cannot hear the falconer,” he was writing about our own increasing distance from the moral center. But Yeats’ opening line always reminds me of my early experience as an Idaho lawyer.

I was fresh from Oakland, where I had tried felony cases as an Assistant Public Defender. Then the new client showed up, looking like a falcon, and he was assigned to me. His hair was pulled back in a bun. With his close-set eyes, sharp curving nose, and narrow face, he did look like a bird of prey. In fact the new client was a falconer who cherished his own cast of Peregrines. His hunting partners were the fastest avian predators in the world. Peregrines dive at 200 mph.

Why did he need a lawyer? It seemed that Fish and Game officers had entered his property, roughly pulling his four Peregrine falcons from their cages. Three birds were taken into custody, but a fourth took to the air. My client complained that one or more of his falcons were hurt during the capture.

The Fish and Game officers were enforcing the Endangered Species Act. The US Peregrine population had been decimated by DDT, and Peregrines were listed very soon after the Act was passed by Congress. But our client’s Peregrines were acquired earlier. Arguably they were in my clients’ lawful care – grandfeathered in as it were.

My client wanted his jailbirds returned, and I was to come up with legal solution. I imagined a writ of habeas “falconinae” … or “Give me the birds!”  [Apologies to my Idaho Falls High School Latin teacher.]

As compared with Peregrine falcons, lawyers have never been on the endangered species list. So I hopped to the task. What a lark. Instead of defending knuckle-dragging human predators, the terror of Oakland shopkeepers, I would be defending noble predator birds, the terror of local squirrels. The battle was on.  I drew up a proposed release order, and prepared the supporting legal arguments. A judge was promptly assigned and Justice prevailed.  Three falcons and their falconer were reunited.


My client came by the office the next day. “Thank you,” he said. “My three falcons are now safe…” He paused. “But can you get an order for the fourth one?” He explained that his fugitive falcon was carrying a radio locater (the latest thing in the day), but its batteries were almost dead. The judge quickly came through with a supplementary order. The battery held; my client’s fugitive falcon came in, rejoining its cast.


To be a falconer is to keep alive an ancient and honorable sport, a partnership between the planet’s top predator (humans) and one of the noblest of birds. Our Peregrine population is alive and well thanks to federal and state Fish & Wildlife Services, The Peregrine Fund, Midwestern Peregrine Falcon Restoration Project and others.

After a couple of years, I returned to the county Public Defender’s office in Oakland – there wasn’t enough crime in Idaho Falls! Over the years, I’ve defended a variety of miscreants, from stone cold killers and sneak thieves, but nothing was quite as charming and satisfying as reuniting a falconer with his falcons.

Jay Gaskill is a recovering lawyer who, having abandoned his urban “life of crime,” returned to live in his former home town, Idaho Falls, also known as Lake Woebegone West.

His bad puns can be attributed to the influence of his high school journalism teacher, the late Afton Bitton – pictured here at her Swan Valley homestead.


JAY and AFTIE at Swan Valley



Copyright © 2016, 2017 by Jay B Gaskill

Jay Gaskill writes on The Policy Think Site – & The Outlawyer’s Blog –



JBG head





By now, with president-elect Trump’s inauguration pending, these five articles have an eerie feel to them, as if I had been writing an alternative history novel, instead of chronicling the most disruptive U. S. political upset in modern times.


Neither political party will be the same after this. The soul-searching among the democrats has just begun, while the republicans are walking the policy tightrope of the century.


One of the most revelatory moments in the campaign was little noted. Trump was commenting about British PM Cameron’s plight in light of the Brexit vote. He said that Mr. Cameron was a good man, but that he had misjudged “the mood of the people.” The key to Trump’s astonishing success is that, whatever else one can say, he alone among all the political contenders in 2016 accurately judged “the mood of the people.”


There was another insightful comment by Michael Gerson in the Washington Post, also little noted.


“If this is a normal election — in which the composition of the electorate and the turnout of various groups roughly match recent presidential contests — Clinton’s argument should be enough. If this is an anti-establishment wave election, she has the worst possible political profile — boasting of her royal résumé during the French Revolution.”

The piece (published on July 29th, 2016) ended with – “This is an extraordinary political moment. Any reasonable Republican presidential contender other than Trump probably would be beating Clinton handily. Any reasonable Democratic contender other than Clinton probably would be beating Trump handily. The parties, in their wisdom, have chosen the untrusted against the unstable, the uninspiring against the unfit. Take your pick, and take your chances.”


Of course, this was not a “normal election,” it was a cataclysmic anti-establishment eruption.

For the record, I ended up voting for the Utah national security expert candidate, former CIA anti-terrorist specialist and investment banker, David Evan McMullin, knowing full well that he had no prayer of getting a single electoral college vote.,

As the Trump cabinet and advisor cadre fleshes out, I am only marginally reassured. My problem is not with the predictable conservative bent of the incoming administration. My concern from the beginning was that Trump, the showman, was making it up as he went, in effect that he was to be presiding over a stochastic presidency where policy is made up on the fly by a celebrity who, though shrewd, is not going to be up to the real demands of governance.


That ship has sailed. Note: Very, very few incoming presidents on the day of their inauguration have known a fraction of what the presidency demands of them. As always, the quality of the ensuing presidency has been a product of the quality of the presidential staff, and the willingness of the Chief Executive to listen and modify his or her positions accordingly. Trump’s elusive flexibility may be a virtue. Whether it can overcome his penchant for impulsiveness and risk-taking is the question of the day.


JBG – January 5, 2017



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By Jay B Gaskill


The Chameleons


Hillary Clinton

Chameleon Politicus-Leftus



Donald Trump

Chameleon Politicus-Populus


Classicists will recognize Scylla and Charybdis as the two sea monsters in the Homeric legend that occupied opposite sides of the narrow Strait of Messina. Any mariner who dared thread the path between them faced deadly perils on both sides, hence the expression, being caught between a rock and a hard place.


Herpetologists (who study creeping things) will recognize this portrayal of Clinton and Trump as Chameleons. As a professional politician, Clinton’s positions have changed over decades, sometimes during a single campaign, while Trump’s populist rhetoric has often mutated, clarified, reversed itself, changing positions day to day.


Our Scylla and Charybdis trap, caught as we are between two political chameleons, is not unprecedented. After all, most politicians are deliberately vague. But given the real perils the US faces, our situation is so perilous that we would be better off staging a dice roll between the two Vice Presidential candidates, were they elevated to Presidential candidates.


The USA desperately needs a functioning two party system, one characterized by mutually respectful dialogue. Without ongoing checks and balances, each party can become corrupt, extremist, or both. For most of the Cold War epoch, bipartisan cooperation was the norm, especially when Democrats were anti-communist and pro-military and Republicans were fully on the same page. That ship has sailed – today, both parties are ideologically fractured. I note that registered democrats and republicans are greatly outnumbered by the voters who identify themselves as independents. However this election and its aftermath play out, our country is in for wrenching changes.



Perils, Problems and Proposals


According to Gaskill



Can the Iranian regime’s ill-concealed rush to become the next deadly nuclear power be stopped in time? A nuclear armed jihad (and make no mistake that is the underlying peril) would make the Cold War seem like a bad vacation. Given the negligent acquiescence of the current administration, Obama’s reliance on the vaunted “treaty” with the radical Iran regime will not work. Without robust “kinetic sanctions” (i.e., a credible, fully effective military preemptive response, unhesitatingly employed as necessary), we will wake up in a nightmare world.




There is a huge and pervasive infiltration of Palestine by the terrorist entity, Hezbollah, siting vast stores of missiles and bombs near fragile civilian targets, with enough firepower to do terrible damage to Israel next door. Which candidate can be relied on to take Israel’s side when the missiles are launched? Hint: The current administration stood idly by while Hezbollah moved in with the support and material assistance of Iran. Hillary has been associated with hawkish positions in the past, but over the last seven years has not differentiated herself from the Obama administration’s thinly veiled hostility to Israel. Trump likes to talk tough about the Islamic threat but his actual foreign policy behavior remains unpredictable.





Will the US Supreme Court still be able to act as a realistic check on the abuse of power by the executive branch, against the constitutional overreach by the legislative branch and the unchecked power grabs by massive federal regulatory agencies? The next president will fill more than two key vacancies on the High Court, shaping its composition and direction for decades to follow. Hillary is committed to a court that would not have attempted to reign in the administration’s executive power, and will reverse what she sees as an excessive commitment to the Second Amendment, and to an unwarranted use of the First Amendment on behalf of political fundraising. Trump has submitted a list of strict constructionist SCOTUS candidates, while at the same time railing at slanderous media coverage, threatening to sic teams of lawyers on his critics with apparent reckless disregard for the First Amendment considerations.





Who will get the USA through the coming fiscal and international monetary crisis without collapsing the dollar and crashing our economy? This is a complex subject, far beyond the scope of a single essay. Suffice it to say that both candidates are aware of the impending train wreck. But neither Hillary nor Donald has squarely addressed it. WHY? …Because neither has a good answer.



According to Gaskill




The USA needs to take concrete, realistic, real-time steps to reverse the decline of our middle class and restore the US manufacturing base by providing honest, meaningful employment to the vast army of underutilized workers – meaning real work as opposed to a perpetual condition of dependency disguised as an entitlement. The kinds of solutions that will work in the real world tend to trespass equally on liberal and conservative orthodoxy. For example, the identification of certain industries as essential to national security for trade protection (think of exotic metals, key aircraft technology, for example) tends to be dismissed by ideologues of both wings – one as too militaristic, one as a violation of free trade principles.  No matter who wins, some major heavy lifting will be needed, including forging difficult compromises with difficult people.  Ideologues and faint-hearted political hacks need not apply.




Our two traditional political parties need to reconfigure the presidential nomination process by incorporating at least three reforms: (1) Vetting: Any person who wants to be a republican or democratic candidate for the president of the United States must be confidentially vetted first for all potential medical, financial and scandal issues. Confidentiality is essential to permit those who are rejected to agree to participate. Failure to fully cooperate in the vetting process will be disqualifying. (2) Primary reform: No weighted primary votes, especially no winner-take-all primaries will be permitted. Each political party will determine the sequence and scheduling of state by state primary voting, on consultation with state party officials. In a deadlocked convention, party officials have plenary authority to determine the nominee, but cannot bypass the vetting process. (3) Debate reform: The primary debate rules are determined by the party in advance, including the selection of debate moderators, the number of participants, and the consequences for candidates who disregard the debate rules (which can include disqualification).





The looming fiscal crisis is strongly coupled to the gathering international trade and finance crisis. When it hits (and it will), mere spending austerity and higher tax revenues will not be enough. Robust economic growth will be essential, especially in the industries than can employ more of the 35% of working age Americans who are currently sidelined. But a growth surge is being held back by a vast web of contradictory policy goals. For example, energy policy is stalled by ambivalence regarding a natural gas boom (well within our reach, if we dare), a national commitment to roll out a 4th generation nuclear energy economy (the zero carbon solution that actually works), among other issues.


Worse, through a combination of neglect and design, much of this commerce- suffocating spider-web is entangled with a pervasive federal regulatory regime – an alphabet soup of agencies that, by virtue of their complexity and insulation from meaningful congressional and executive management, have become intractably difficult to reform. Collectively, they add up to “regulation without representation.”


The USA needs a sophisticated blend of industrial policy (selectively reestablishing protecting key local industries and their attendant jobs) with fair and open access to foreign markets (a goal that conflicts with other countries’ industrial policies).


Our country’s economic crisis will require policy approaches that are intelligent, non-ideological, proactive, practical and creative.  But when have these terms ever been honestly applied to the creaking, corrupt antiquated political system that operates inside the DC Beltway?



► Please note: Intractable does not mean impossible.



In the context of the grave stakes and challenges, and the very difficult steps needed to avert disaster, all the discussions around special bathroom accommodations for transsexuals (whatever the merits), and nearly all the pending “social issues” are just distractions.


Moreover, it is painfully obvious that the economic issues looming over the USA will not be resolved without additional tax revenues. And it is equally obvious that that the way forward requires each party to accommodate the other.


Our country needs someone of the stature and bipartisan support of a Dwight David Eisenhower,

But we will be settling for much less. Voting for either Hillary or Donald presents a vexing Scylla and Charybdis choice for most Americans – a gamble either way. Both candidates are chameleon politicians.  Both promises to take us in a separate direction, or do they?  No wonder that a majority of their supporters doubt whether they can take their candidate’s promises and assurances seriously.


Electing Trump presents risks that many find unacceptable. Informed conservative voters are being asked to gamble on a moderately good outcome (a more conservative Supreme Court, a tougher foreign policy stance) versus bleak downside possibilities. Informed liberal supporters of a Hillary presidency are being asked to gamble on a moderately good, somewhat unsatisfying outcome (say, a centrist, pragmatic president), versus a circle-the-wagons partisan standoff, possibly coupled with a POTUS health crisis, even hesitation in the face of a Hezbollah attack on Israel or allowing an Iranian nuclear breakout.


Few voters have confidence in Trump or Clinton – hence the dilemma. Neither candidate is a bet that traditional gamblers would normally take. I share the electorate’s ambivalence.


Either Hillary’s or Trump’s Vice President may well become president. Why? …Because neither Trump nor Hillary may serve a full first term. In Hillary Clinton’s case, her “secret” medical issues may well truncate her presidency. In the Donald Trump’s case, a first term impeachment is not out of the question.


Conservative columnist Michael Gerson wrote an insightful piece in the in the July 29th Washington Post, concluding with this zinger: “[T]he parties, in their wisdom, have chosen the untrusted against the unstable, the uninspiring against the unfit.” Given such choices many ask, why vote? …Because the future of the USA is at stake.


Please note: When second term President Bill Clinton was forced to cooperate with the Republican congress, better public policy resulted. Checks and balances worked.


Recent polls show the third parties are gaining support. Although no “third party” candidate can win, but the Libertarian, Gary Johnson, the former New Mexico governor, may break the 15% barrier and get into the debates.  So a vote for a third party candidate makes some sense. Neither Clinton nor Trump will face a rubberstamp congress. By denying the winner a mandate, a strong third party showing will encourage dialogue and compromise.


Is the best we can do?

It was far from the best we could have done.

But that ship, having sailed, is now under water.

So we start over.

Every era begins on the foundations of the mistakes of the earlier ones.

Pray for the United States of America.

JBG head

Jay Gaskill


►Copyright © 2016 by Jay B Gaskill, Attorney at Law


►Portions of this article appeared in the Post Register ( ) A license to link to this piece or to publish pull quotes from it (with full attribution) is hereby granted. For all other permissions and comments, please contact the author via email at outlawyer.gaskill@gmailcom .


►Jay Gaskill served as the chief Public Defender for the County of Alameda, CA, headquartered in Oakland for 10 years, following a long career as an Assistant Public Defender, then left his “life of crime” to devote more time to other pursuits.  Learn more about the author by visiting The Policy Think Site at; or by navigating to  and / or .



READ Jay B Gaskill’s moving essay, THE AMERICAN CREED

…and his chilling analysis of the nuclear threat from Islam———–




From the Desk of Jay B Gaskill, Attorney at Law



August 4, 2016


Dear Mr. Trump:


It’s time to up your game, or get out of the race. I am beginning to wonder whether you were secretly recruited to get Hillary elected.  No one, not even you, can wing it into the White House. You are being played [1] and you don’t even seem to know it. Your recent performance makes you the single most effective campaign asset for Hillary’s election.


After the 911 attacks, Defense secretary Rumsfeld warned the US intelligence and national security community about the unknown unknowns, the threats and dangers that our experts weren’t smart enough even to ask questions about.  It is the supreme danger of overconfidence, and the downfall of all who think they know more than they really do.


Not only do you seem to be unaware of the traps and snares on the playing field of politics, you seem to be unaware of the traps and snares on the international scene. [2]


Worse, you don’t seem to care. Do your homework. Please.


Seek out and listen to the people who know more than you do – they are legion.  Pay attention to them. And think – better yet, consult, before you follow your next impulse. People want change.  But they do not want to be led over a cliff.


Jay B Gaskill

[1] Khizr Kahn’s presentation at the DNC convention was an obvious trap. A considered response, delivered in only writing (cc to the media – as opposed to your damaging shoot-from-the-hip verbal fusillade), would read something like this:  Mr. Kahn, I deeply regret that you allowed yourself to get caught up in partisan politics. Know that I honor the bravery and service of your son, Captain Kahn, and that you have my deepest sympathy. I wish we had more men like him. Yes, I do have a copy of the US constitution. As an immigration lawyer, you surely already know that as a sovereign nation, the United States of America has the right and the duty to control who comes and goes across our borders: The security and safety of the American people is paramount. The huge volume of foreign-applicants from places that are plagued with large numbers of the radicalized jihad, hiding in the midst of peaceful migrants, presents a daunting security problem. In the current age of jihad inspired and directed terror attacks, it is irresponsible for the US government to fail to fully vet all persons entering US borders. The sheer numbers of potentially suspect applicants require a temporary halt in large scale immigration from such high risk areas. And yes, I recognize that the dangerous radicals pose a threat to the peaceful followers of Islam as well, but our citizens must come first.


[2] When being interviewed by a card-carrying liberal, your friend George Stephanopoulos, and having earlier praised Russian strongman, Vlad Putin, you just cannot afford to give a fog-ball answer about Russian presence in the Crimea.


For the downloadable PDF, go to this link —



JBG head

By Jay B Gaskill


There are several lessons from the “Black Lives Matter” campaign, among them:


  • Law enforcement is on one side, predators on the other.
  • For every bad cop (a very, very rare thing in my long experience), there are thousands of dangerous crooks.
  • Effective numbers of on-duty officers are the key to public safety, because well-deployed police forces do deter crime.
  • Police officers do not actually want to shoot their service weapons in the field. To say that shooting a gun is a last resort for any police officer is a huge understatement.


We enjoy safety because we live behind the thin Blue line. But who are the first to suffer when police coverage is inadequate? …Those who must live in the poorest neighborhoods. In every city, they will suffer first and most.


In Oakland, where I served as an Assistant Public Defender and later was appointed to run the County Public Defender’s office, the poorest neighborhoods were populated with struggling families, predominantly African-American and Hispanic. They couldn’t afford burglar bars on their windows, surveillance cameras, private security, or any other crime protection than to – “Call 911 and wait…and wait.”


Unlike the comfortable folks living in gated communities, Oakland’s poor were (and to a tragic degree still are) forced by circumstances to live in danger. Poor families were denied the one fundamental entitlement without which all other entitlements are meaningless: the right to effective police services. It’s hard enough being poor without being constantly victimized by thieves and thugs.


So it is particularly tragic when some high publicity police misconduct incident stokes anger towards “the police.” Whether any particular officer is justified or is way out of line, the resulting hue and cry will weaken support for law enforcement.  I have seen the consequences: Police morale tanks; crime witnesses decline to cooperate; and politicians hesitate to fund additional police resources.


Thankfully, most communities support their police forces. But there are toxic undercurrents in every community: In more rural communities, we think of the meth epidemic, something that can spike without warning and overmatch law enforcement resources. In urban neighborhoods, there are criminal gangs.  And everywhere, criminal acts are opportunistic.  This is why a visible, responsive police presence holds down crime.  And why, in stable neighborhoods, the social capital of trust networks among the law abiding neighbors, crime is also lower.


Police shootings are always troubling, even to the officers involved and even when they are fully justified.  When the shooting victim is black, there is often a hair trigger reaction among the local African American community. This distrust quickly and opportunistically can grow into a political movement based on a thoroughly outmoded caricature of police officers as a bunch throwback, gun-toting “crackers.”   The truth is that the overwhelming majority of America’s police officers are in service for idealistic reasons. Most police officers serve their entire careers without firing their service pistols, except on the range.


Few civilians appreciate the risks police take when, without backup, they must approach someone in a car, an alley, in poor lighting, or when outnumbered. They are damned if they have a firearm ready, and quite possibly dead if they do not.


Years ago I was driving my wife and two small children from California to see my parents in Idaho. I was a career public defender on vacation.  I didn’t know it, but this was to be my law enforcement epiphany.


About 80 miles from my destination, after driving for more than 12 hours, I was ticketed for speeding. The practice then (later discontinued) was to require the driver to post bail at the nearest police station; but in this case I was allowed to use the station in my parents’ town.


So I arrived, put the kids to bed, and borrowed my mother’s car, an old Dodge, and went to find the local police station.  But the station had moved since my last visit, and I soon found myself in a dark cul-de-sac. But before I could turn around, a patrol car suddenly lit up in front of me. I hurriedly backed up, having been conditioned to expect that any police car that suddenly lights up like that is responding to a call. As it turned out, I was the target. I was ordered out of my mother’s car and directed to produce ID.  Cranky and full of civil rights fervor, I slammed my wallet town on the hood of my mother’s Dodge.


Only then did I notice that the officer had his hand on his sidearm. I backpedaled as best I could, dropping the names of some local judges I knew. This drew a stone-faced response. Then I remembered a classmate, E. H., a long-time friend who was (I hoped) still a member of the force. When I mentioned his name, everything melted, and the officer and I were soon on a first name basis.


The officer then explained that this was the location of several burglaries; that he could not tell in the dark whether I had other people in the car. He was alone without backup. He confided to me that he was frightened.  …Frightened. My African American friends and colleagues can attest that I am and was then a white dude. I can attest that any person of any color in that situation would have been perceived as a potential threat.


Whenever you encounter a rant about police racism and excessive force (hard to avoid in the current hysterical atmosphere), keep some facts in mind:


  • Brave African American police officers are on duty, shoulder to shoulder with their brothers in Blue, 24-7, fighting the same enemy.
  • Then look at the victim demographics: Recently in Oakland, African Americans made up 67 of the city’s 90 homicide victims. In San Francisco, they were 50% of all homicide victims. In Los Angeles, 43% of homicide victims were Latino, 38% were black.
  • This pattern is repeated across urban America. Poor people, often minority poor people, are disproportionately numerous among the lists of homicide victims.


Every killing that is prevented by a police presence, saves innocent lives: The homicide victim: spared. His or her family: spared. The neighborhood: spared. Even the would-be killer’s family is spared. The bottom line: Innocent lives matter.


As a public defender in Oakland, I witnessed the rise of the Black Panthers, a race-based “protest” group that mutated into a destructive force. While I was defending a burglary case in the Alameda County Courthouse in Oakland, Black Panther “Defense Minister”, Huey P Newton was being tried next door for the murder of a police officer. It was a retrial after a hung jury. During a recess in his case, Newton, with his lawyer, Charles Gary, entered my courtroom, and sat in during my final argument.


Huey P Newton was an intelligent, charismatic figure with devout, but uncritical followers. The Black Panthers began in idealism, and mutated into a criminal gang. The famous slogan was “The Revolution has come, it’s time to pick up the gun. Off the pigs!


In 1968, Panther Eldridge Cleaver led an ambush of Oakland police officers, during which one Panther was killed.  Newton himself was killed in 1989 by a drug dealer.


Oakland’s police never quite recovered. Years ago, my office had an intake of 180 murders in one year. This was for the whole county, but Oakland accounted for the vast majority of killings. More recently, Oakland’s homicides were “down” to 85. In a small town, say one of 50, 000, that would be about two killings a month.


After all these years, Oakland is still seriously under-policed.


Do take a moment to tell the next police officer you encounter that you appreciate all that he or she does for the community.




Forwards are authorized and encouraged. Copyright © 2016 by Jay B Gaskill, Attorney at Law

For all comments and other permissions, contact the author at –  

Portions of this piece are being published as an OP Ed in The Post Register, a regional Idaho newspaper.  Jay B Gaskill served as the 7th Alameda County Public Defender before leaving his “life of crime.” He now lives in Idaho Falls, his former hometown.




MAY 10, 2026

JBG head

Three Gaskill Op Ed Pieces &

Concluding Observations

The following three following pieces were published as Opinion pieces in the Post Register, as well as on The Policy Think Site.


ONE:                                   REBRANDING THE GOP?




Op ED / Commentary by Jay B Gaskill


APRIL 8, 2016 …Idaho GOP members decisively rejected Donald Trump. Clearly, “The Donald” has challenged the GOP establishment. But he is also questioning the very idea of conservatism.


From local talk shows, columns and letters one can glean very little about what it means, on any deep personal level, for someone to say “I am a conservative,” except that he or she is unhappy with the current president.


What is conservatism, really? Over the centuries, conservatives were opponents of change – liberals were advocates of change. America’s founders were liberals in that sense, as were their allies in the British parliament. But context always matters. In Soviet Russia, the ruling communists were called “conservatives” and their opponents were “liberals.” The Reagan administration supported the Russian “liberals.” But Reagan was a conservative, wasn’t he?


There are underlying conservative principles. One is at the core: the elevation of individual human dignity over the collective, coercive “social improvement” programs.  A conservative respect for individual human dignity translates to the right to earn and keep one’s property; the defense of the traditional family as an institution; and the robust commitment to law and order and national defense.  Conservatives are committed to the US constitution as a unique achievement in world history that is designed to protect individual human dignity from enemies, domestic and foreign, including from the government itself.


Our two political parties are brands:  The Republican Party brand emphasizes conservative values and goals, but not to the exclusion of some liberal ones. The Democratic Party brand emphasizes the progressive improvement of the human condition via large scale collective measures, but not to the exclusion of some conservative goals.  For republicans, the constitution is a bedrock boundary, a bulwark against tyranny. For many democrats, the constitution is a living instrument that must bend to suit the times. Few of us are “pure” partisans – life is too complicated. Neither party is purely conservative or liberal.


Party branding represents a social contract with voters. Trump would change the Republican brand. A few years from now we will remember how a celebrity with self-contradictory opinions sought to take over the GOP.  For now, we can’t know the outcome. We can’t even be sure whether a president Trump would care about the property rights of an Idaho landowner, or whether he would regard the US constitution as something more than a problem for his lawyers.


Most GOP officials have not lost the ability to count actual votes. Polls are volatile and inaccurate. Votes are real. A majority of individual republicans voting in the primaries have consistently rejected Donald Trump as their presidential candidate. You doubt this? Find one primary race where Donald Trump broke 50% among actual GOP voters. The delegate count exaggerates Trump’s successes because GOP mavens miscalculated. They planned on a Jeb Bush consensus. The gamed the playing field to facilitate that outcome. The unintended result was that a candidate with a minority of votes could run the table. Trump saw the opening and ran with it.


If Mr. Trump never gets a majority of individual GOP primary votes, he should never get the nomination.


If either party’s brand is to change, that should be left up to its voting members.


TWO:                              IT COMES DOWN TO THIS?



Op ED / Commentary by Jay B Gaskill


APRIL 27, 2016 Surprise: Peggy Noonan, Reagan’s speechwriter, and Marc Johnson, aide to Governor Andrus, agree.  Last week, Republican Noonan, writing in the Wall Street Journal and Democrat Johnson, writing in the Post Register, made the same point: Our fractious presidential campaign is a watershed. Noonan: “We have come to this moment”… one where “too much is being lost;” and where “the great choice in a nation of 350 million may come down to Crazy Man versus Criminal.” Johnson: We are “being led by people most of us don’t trust.” This “is the new normal.”


Maybe, maybe not. I’m thinking of the wisdom of the Yankee’s Yogi Berra: “It ain’t over ‘till it’s over.”


The “Crazy Man” in Noonan’s piece is Donald. Trump who apparently thinks he’s riding a tide of popular support all the way to the GOP nomination. But Trump’s juggernaut is a public relations myth. Following the New York and “Amtrak” primaries Tuesday, Trump can claim a total of 11 million votes, give or take, as against about 13.6 million votes for the other GOP candidates. Trump is playing catch-up in the East, having finally won majorities among a small fraction of the GOP affiliated electorate. But he has yet to persuade a majority of all republicans, much less of all Americans, that he should be America’s next President.


The latest primary vote tallies conceal the large Trump voter gap among republicans. I predict that very few GOP non-Trump voters will embrace the Donald. Note that Senator Marco Rubio has merely suspended his candidacy, and still controls 169 delegates. Note that both Rubio and Kasich each poll stronger against Hillary than Trump.


Yogi Berra would not give up this game – not in the ninth inning, with two on base.


Trump takes the GOP nomination only if he locks down 1,237delegates before the first ballot.  But his negatives are big; and his support melts away if he falls short. If this happens, Trump prevails only if GOP leaders decide to hand him the keys, pretending that they have no other choice.


Trump needs another 283 delegates to guarantee him the GOP nomination. Before June 7, there will be primaries in Indiana, Nebraska, West Virginia, Oregon, and Washington State, a total of 199 delegates.  Trump needs more than 199.


The last inning may be played in California on June 7 when its 174 delegates are up for grabs – winner-take-all. Will California be Trump’s Waterloo, or Trump’s coronation?


THREE:                              A “SETTLE-FOR” ELECTION?



Op ED / Commentary by Jay B Gaskill


MAY 4, 2016 Indiana was the Waterloo for Trump’s opponents. Cruz and Kasich have capitulated. As it looks today, California will be Mr. Trump’s coronation as the “best” the GOP can do. Trump still needs 190 delegates, and California republicans (a tiny minority in the state) will deliver 174 of them. So this is to be our “settle for” election. Polls are mere shadows compared to actual votes.  Donald Trump is still not the preferred choice of most GOP voters. By my count, Trump still lags significantly among GOP primary voters – by a million. You can check my estimate by adding up the popular vote totals on the site <>. That said, it does look like game over. How can this be? …Because GOP was sleeping at the gate. Because the winner-take-all delegates selection rules allowed a minority candidate to walk away with a majority of delegates. Why all the drop outs? It was never true that the exit of a Trump opponent made it easier for the remaining candidates to collectively out-poll Trump. It only made it harder for any one of them to lead the pack. Collectively they were strong enough to deny Trump a first-ballot win. But each candidate capitulated for one compelling reason that never was a consideration for Mr. Trump: He or she ran out of money. Political money is rarely about the good of the order; it’s typically about buying access to a winner. Consider the irony if the current GOP system produces a November loser.




Victor Davis Hanson is a military historian, classicist, a Central Valley California farm owner, a Hoover Scholar, and an astute, feet-on-the ground political analyst. He has written a spot-on take on the Trump phenomenon, a must read for thinking liberals and realistic conservatives. The title is TRUMP: SOMETHING NEW UNDER THE SUN.


Here are two pull quotes:


Trump is a postmodern creation, for whom traditional and time-tested rules do not apply. He is neither brilliant nor unhinged, neither ecumenical nor just a polarizer, not a wrecker and not a savior of the Republican party, but something else altogether. He does not defy conventional wisdom. There simply is no convention and no wisdom applicable to Donald J. Trump. For years postmodernists have lectured us that there is no truth, no absolutes, no timeless protocols worthy of reverence; Trump is their Nemesis, who reifies their theories that truth is simply a narrative whose veracity is established by the degree of power and persuasion behind it.


Trump has no loyalty to the Republican establishment or to the conservative movement. The apparent greatest attraction for his supporters is that he drives crazy those who worship Hillary Clinton and Barack Obama. And if the Republican establishment implodes with the Obamism it did not stop, well, so goes collateral damage — and in the process, woe to us all.


Trump is for a brief season our long-haired Samson, and the two pillars of the temple he is yanking down are the Republicans to his right and the Democrats to his left — and it will all land on top of us, the Philistines beneath.


“And he bent with all his might so that the house fell on the lords and all the people who were in it. So the dead whom he killed at his death were more than those whom he killed in his life.” Judges 16.30.


Go to this link to read Professor Hanson’s full article:








Visit The Policy Think Site – – where conservatives and liberals are on speaking terms.




Both political parties are moribund – they survive as sad caricatures of their better days, having long ago sidelined their better angels. They are built around two disparate, mostly incompatible coalitions, each held together by shopworn slogans and a shared antagonism for the opposing party.


For many years now, America’s single most popular political affiliation remains none of the above.


Democrat and Republican elected federal officials have cooperated in the accumulation of a staggering national debt – whether tacitly, explicitly or by default no longer matters.[1] These same elites have led this country into global trade arrangements that, whatever their other merits and demerits, have led to the  massive loss of good paying American manufacturing jobs and the hollowing out of US manufacturing capacity in traditional core industries like steel. Because this cumulative damage remains unrepaired, a growing resentment is boiling up among disenchanted US voters.


I recently wrote this to one of my favorite correspondents —


I believe the Trump phenomenon fits into the larger picture in which nationalist, anti-global politicians are gaining more and more traction in Europe, the UK and elsewhere.


The governing, ‘we-always-know-better’ ruling elites have been tone deaf. It will be a double reckoning – for the elites and the trade and for fiscal policies they have spawned,


The coming international trade and monetary disruption may do more damage to the general polity than the Great Depression did. But the USA at least has a solid shot at emerging stronger than before. But my optimistic view depends on the survival of our constitution. Pray that the necessary wrenching economic “adjustments” don’t involve abandoning or seriously tinkering with our constitution.


These are going to be “white knuckle” months and years, not just for conservatives and republicans. They are going to be perilous times for Western Civilization itself. And the USA, all faults accounted for, is the linchpin on which the future of all law-driven, non-authoritarian governance depends.


Now I must add a caution:


There almost certainly will be an economic crisis, no doubt of epic proportions, and no doubt during the term of our next President. As a candidate, Mrs. Clinton presents the not-reassuring prospect of business-as-usual, while Trump’s candidacy promises “change.”  But what change?


Donald Trump is a television celebrity. He presents to us as the classic, supremely self-confident sales/developer/promoter a super salesman who is now selling the notion that Donald Trump can do anything he sets out to. Trump saw a political opportunity in the flawed GOP nominating process with an over-crowded field, and he cunningly exploited it. So now what?


Trump’s situation reminds me of that large barking dog that chases cars every day.  …Until the fateful moment when that large barking dog actually catches one.


I am left with the haunting impression that Mr. Trump is still unprepared for governance, that he’s is still playing catch up, that he’s still making things up as he goes along – covering his tracks by reassuring voters that he’s “flexible.”


I still wonder: Does Donald Trump have a true allegiance to the US constitution, or is it a mere legal obstacle to “getting things done”, a problem for the lawyers to fix? Does he have an understanding of proper constitutional limits? Does he even have a philosophy of government? One could go on with this line of questions for hours, but you get the idea.


There are many more questions about Donald Trump than answers.


It is one thing for a candidate to strategically airbrush his or her positions in order to gather in the widest possible coalition.  It is quite another for a shrewd opportunist to hide his ignorance behind vague, provocative verbal fog-balls. The most dangerous kind of ignorance is what Donald Rumsfeld called that of “the unknown, unknowns.” This is the kind of ignorance that bites you from behind – because you are so full of yourself that your “invincible” confidence prevents you from seeking help where a more humble intellect would readily get and heed advice.


As a politically connected California lawyer, I had privileged access to the process by which Ronald Reagan, a “mere” Hollywood actor, was able to transform himself into a world class governor of the nation’s most populous state.  Reagan’s California staff was among the very best blend of policy acumen, political experience and strategic savvy this country has ever seen. And he brought most of that team to the US Presidency, along with (count them) eight years of hands-on experience in governance – and even more years as a skilled, likeable political advocate.  Trump and Mrs. Clinton are not bringing that kind of experience to the table, let alone a world class staff.


Mrs. Clinton has troubling honesty and judgment problems. Mr. Trump has troubling resume and policy-cluelessness problems.  The election of either of them presents significant risks for everyone who cares about the future of the country.


Must we really settle for a roll of the dice?


The remaining six months of campaigning will fill in some of the blanks. But when the smoke settles and our new POTUS takes the oath of office on January 20, 2017?  I suspect that most of the really important questions will remain unanswered. Here are five to keep in mind:


  • Will either candidate be ready, willing and able to block Iran from acquiring an atomic bomb capability when, inevitably the current sanction regime fails; and the radical Iranian regime makes a sudden, clandestine rush to the point-of-no return nuclear armed power status?


  • Will either candidate be ready, willing and able to effectively defend Israel when its enemies, once again go for the jugular in one more horrendous attempt at the “final solution” to “the Jewish problem”?


  • Will either candidate be wise enough, astute enough and courageous enough to keep and employ an American military force that is ready, willing and fully able to accomplish the first two objectives


  • Will either candidate be wise enough, astute enough, courageous enough, and persuasive enough to thread the economic needle between sovereign fiscal bankruptcy and crippling austerity?


  • Will either candidate be able to survive in office long enough to succeed in any of these objectives?

► Survive as in medically? [Hillary is concealing potentially grave health issues, and Big Donald, greatly overweight and under exercised, has revealed no details about his so-called “excellent” heath.]

► Survive as in the inevitable impeachment attempts? [A Trump second term could look like Bill Clinton’s first and Richard Nixon’s last; and Hillary’s cover-ups may come apart during in her first term, especially when her popularity plummets.]




Copyright © 2016 by Jay B Gaskill, Attorney at Law


Jay B Gaskill


The three Post Register opinion pieces are also copyrighted by that newspaper.


The cited Victor Davis Hanson article is protected by his copyright. My pull quotes are just that, “fair comment” pull quotes.


A license to link to this article or to publish pull quotes from it (with full attribution) is hereby granted. For all other permissions and comments, please contact the author via email at


The author served as the chief Public Defender for the County of Alameda, CA, headquartered in Oakland for 10 years, following a long career as an Assistant Public Defender.


To learn more about Jay B Gaskill, attorney, analyst and author, visit “The Policy Think Site” at or navigate to the author’s professional profile at these links:  and / or .









[1] Refer to my piece, The Deficit Conspiracy at this link < >.




This Op Ed was published in the Post Register on April 12, 2016…/local-column-re-branding-gop


Jay B Gaskill
Jay B Gaskill

Our two political parties are brands and that “brand” represents a contract with a party’s voters, writes Jay B. Gaskill.

By Jay B Gaskill

I was proud of the Idaho GOP when its members decisively rejected Donald Trump. Clearly “The Donald” has challenged the GOP establishment. But he is also questioning the very idea of conservatism.

From local talk shows, columns and letters one can glean very little about what it means, on any deep personal level, for someone to say “I am a conservative,” except that he or she is unhappy with the current president.

What is conservatism, really? Over the centuries, conservatives were opponents of change – liberals were advocates of change. America’s founders were liberals in that sense, as were their allies in the British parliament. But context always matters. In Soviet Russia, the ruling communists were called “conservatives” and their opponents were “liberals.” The Reagan administration supported the Russian “liberals.” But Reagan was a conservative, wasn’t he?

There are underlying conservative principles. One is at the core: the elevation of individual human dignity over the collective, coercive “social improvement” programs. A conservative respect for individual human dignity translates to the right to earn and keep one’s property; the defense of the traditional family as an institution; and the robust commitment to law and order and national defense. Conservatives are committed to the U.S. Constitution as a unique achievement in world history that is designed to protect individual human dignity from enemies, domestic and foreign, including from the government itself.

Our two political parties are brands: The Republican Party brand emphasizes conservative values and goals, but not to the exclusion of some liberal ones. The Democratic Party brand emphasizes the progressive improvement of the human condition via large scale collective measures, but not to the exclusion of some conservative goals. For Republicans, the Constitution is a bedrock boundary, a bulwark against tyranny. For many Democrats, the Constitution is a living instrument that must bend to suit the times. Few of us are “pure” partisans – life is too complicated. Neither party is purely conservative or liberal.

Party branding represents a social contract with voters. Trump would change the Republican brand. A few years from now, we will remember how a celebrity with self-contradictory opinions sought to take over the GOP. For now, we can’t know the outcome. We can’t even be sure whether a President Trump would care about the property rights of an Idaho landowner, or whether he would regard the U.S. Constitution as something more than a problem for his lawyers.

Most GOP officials have not lost the ability to count actual votes. Polls are volatile and inaccurate. Votes are real. A majority of individual Republicans voting in the primaries have consistently rejected Donald Trump as their presidential candidate.

You doubt this? Find one primary race where Donald Trump broke 50 percent among actual GOP voters. The delegate count exaggerates Trump’s successes because GOP mavens miscalculated. They planned on a Jeb Bush consensus. They gamed the playing field to facilitate that outcome. The unintended result was that a candidate with a minority of votes could run the table. Trump saw the opening and ran with it.

If Mr. Trump never gets a majority of individual GOP primary votes, he should never get the nomination.

If either party’s brand is to change, that should be left up to its voting members.

Gaskill is a “recovering lawyer” who lives in Idaho Falls.


Copyright © 2016 by Jay B Gaskill and the Post Register


A longer, related article by Jay Gaskill: The Emerging Coalition of the Creative, Non-Left




More about the author at –


Somme collected articles on Webster’s Web Commentary at


Please address all comments and reprint permissions to the author via email at .




Jay B Gaskill
Jay B Gaskill

Analysis by Jay B Gaskill, Attorney at Law


It is March 2, 2016 at 10:00 AM, Mountain Time:


Donald Trump has been defeated by the popular vote in every single GOP delegate contest, and trails in the number of delegates.


Somehow, for the chattering class (and a few GOP turncoats like the overweight governor of New Jersey) it is all over. NOT.












Trump “wins” with a total of 33%

Trump actually is rejected by 67%



Trump “wins” with a total of 44%

Trump actually is rejected by 56%



Trump “wins” with a total of 39%

Trump actually is rejected by 61%



Trump “wins” with a total of 49%

Trump actually is rejected by 51%



Trump “wins” with a total of 39%

Trump actually is rejected by 61%



Trump “wins” with a total of 35%

Trump actually is rejected by 65%



Trump “wins” with a total of 33%

Trump actually is rejected by 67%



TOTAL DELEGATES FOR TRUMP — 316 (25.5%) of the needed 1,237


TOTAL GOP DELEGATES NOT FOR TRUMP — 364 (29.4%) of the needed 1,237


The real question is what happens at the Republican Convention in Cleveland on July 18.



It is very likely that Trump and all the other candidates will fail to get the needed 1,237 delegates. As a result, ALL delegates will thereafter be free to vote as they individually see fit.  It also seems likely that a majority of the rank and file GOP voters will have rejected the leading plurality candidate, Trump. Will the delegates to the GOP convention then have the requisite grit, common sense and foresight to pick someone other than “the Donald” to stand for election in November?


Trump represents an attempted hostile takeover of an established institution. Like all takeovers of this kind in the business world, the insurgents have one clear shot at winning. Trump just can’t get there, unless the delegates break faith with a majority of republicans and give away the store.


This will be a lesson in statesmanship. If the GOP yields to Trump, in my opinion the party will have forfeited the moral authority to govern.




Copyright © 2016 by Jay B Gaskill, Attorney at Law


Forwards and pull quotes from this article require no further permission, provided they are with full attribution.


For all other permissions, email the author at










An Essay in Two Parts


I am here not to praise Trump nor to bury him, but to raise the following question: If this is to be a “settle for” election, can we reasonably and responsibly settle for Donald Trump as the next president of the United States?

 JBG head

Jay B Gaskill, Attorney at Law






For now, “The Donald” is enjoying a Halo-Effect. This is the fluctuating mirage that people tend to see when a new would-be leader shows up on stage during a time of discontent.  The Halo-Effect only works when a would-be leader’s image is a screen on which we can project all our hopes and expectations.


The Halo is always a mirage.


This is what has happened so far:  Our two political parties have effectively cooperated for the last half century (both voluntarily and involuntarily) in the creation of a social, economic and political vise. We intuitively know this has taken place. Even without naming the resulting situation, a moment’s reflection exposes the source of the current popular discontent: 


More and more policy is being determined outside the traditional democratic processes. As an exercise, I invite you to make a list of any specific policy concerns of yours that have been subject to a popular vote especially an election in which you were given a meaningful choice. Then make a second list of policies and rules that have impacted your life in which there was no meaningful electoral choice. The result will tell you a lot about the current discontent.


  • Do you recall being asked to vote on whether your passenger car choices would no longer include a new car without an exploding air bag in the passenger seat, or (a pending issues) whether that new car could be available with rear windows you can see out of (avoiding the pending requirement for rear view cameras)? That was a decree by an administrative agency, no member of which has to stand for election…ever.
  • Do you remember voting on whether regular physician visits can be metered out at 15 minute intervals, or that medical staff can be made to key treatment to “diagnostic codes”?  Voters were not consulted.


We can add many more examples. The takeaway point is that the growing list of such regulatory annoyances is very long, while the number of pertinent ballot choices is very short to nonexistent.


For many Americans, the very notion of meaningful popular consent to all of this is a sham. This is why so many are saying to themselves and to others: I’m mad as hell and I’m not going to take it anymore.


We have lived through the gradual expansion of vary large bureaucratic institutions that have taken larger and larger areas of policy and decision-making out of the hands of the so-called ordinary people. In other cases – thinking, for example of international trade arrangements that helped dismantle US factories – there was no meaningful choice between the two parties.  Vast policy changes affecting our lives have been enabled by the political class, yet the political class dodged accountability, in part by placing power in the control of experts and other unelected officials, removed by layers and layers of separation from any elected official. As a result, presidents, members of the congress and party leaders were able to dodge accountability when policies went wrong or were unpopular.


The sense that we are being “managed” by the governing class is deeply irritating to a large set of displaced artisans and blue collar workers. These are the people who used to be the mainstay of the Democratic Party. These are the people who temporarily became “Reagan democrats.” These are the people who are so disenthralled with both parties that, for them, a looming figure like “The Donald” is cloaked by the Halo Effect.


Over the last 20 years, the Democrats have narrowed their policy agenda into a single, hardline progressive catechism, one that leaves little room for the patriotic, law and order factory workers, miners, oil workers, police officers, fire fighters, not to mention all the other men and women who joined those who shouted “USA!” after September 11, 2001.


Unlike the monolithic 2016 democrats, today’s Republicans are split over a whole range of policy issues. This explains why, although both parties are waking up late to the depth and breadth of discontent, the GOP was the obvious Trump target.  Near term, little that happens on the Democratic side is likely to avert the pending Trump train wreck. So I will focus on the GOP’s ongoing primaries and the pending convention struggle


Why it is very late in the game:


GOP strategists falsely assumed that after a minor struggle, the presumptive heir, Jeb Bush, a centrist within the GOP spectrum, could quickly wrap up the contest, aided by a series of winner-take-all elections in delegate rich states.


Anyone who has followed “The Donald’s” career knows that he is a very shrewd operator.  The table that the GOP set for Bush was ready-made for a Trump takeover. No one in the GOP saw it. But no sharp operator would have been surprised. I conclude that the GOP had no sharp operators on duty.


I write this on Leap Day, on the eve of March 1, before the last big vote before Super-Tuesday. Trump’s lead in delegates is 82. This is against a total of 43 for the other candidates, but it is 1,155 short of the number to win the nomination.


Trump’s Nevada win in the popular vote, 45.9%, meant that 54.1% declined to vote for him. In South Carolina, his 32.5% win meant that 67.5 % voted for someone else. Ditto New Hampshire. And Trump actually lost in Iowa to Cruz.


The main GOP “stop the Donald” obstacles are the “winner-takes-all” states yet to vote — Florida, Illinois, Missouri, Arizona, Wisconsin, Delaware, Maryland, Pennsylvania, Indiana, Nebraska, California, Montana, New Jersey, and South Dakota. …And the “winner-takes proportionately more” states: Alabama, Arkansas, Georgia, Oklahoma, Texas, Vermont, Maine, Puerto Rico, Idaho, Mississippi and New York.


If Donald Trump consistently gets a larger plurality than the opposition, say in the range of 40%, the “free” extra delegates awarded in the “take all” and “take extra” states could actually award Trump, a candidate opposed by a majority of GOP primary voters, a majority of delegates and therefore the nomination.


This is a white knuckle period for the GOP.


If candidate Trump shows up at the GOP convention with only 1,000 pledged delegates, he loses on the first ballot; and all his delegates are set free to vote anyone who has been nominated. What happens next?


Look for trades, promises and conflict to ensue – high theater.


But the second ballot is a critical moment. If Trump’s support starts to erode, then the selection of a different GOP standard bearer is likely. But if Trump’s support increases, you will see blood on the floor.


At the moment, the polls show Trump winning in Florida, but Cruz is winning in Texas. That would be a gain of all 99 Florida delegates for Trump, but the 155 Texas delegates would be allocated by a formula, some for Cruz, some for Trump – because Texas is not winner take all.



TRUMP’S GAME, Continued…




Trump is the known, unknown candidate. For most Americans he’s the self-confident image of success, the millionaire (or billionaire?) of Celebrity Apprentice, brazenly charming enjoying the guilt-free glamour of a “self-made” rich man. He is a savvy manipulator with a gift for publicity. And – for most people – he is a likeable character, someone that people like Bill and Hillary liked to be seen with. His glamour is a projected image – a screen.


Back when I was a young law student in California, a second tier Hollywood actor, Ronald Reagan, first ran for governor against democrat Pat Brown. Governor Brown, the elder, was a lawyer, an old style pro-labor democrat who supported John Kennedy, bolstered California education and rebuilt the water infrastructure. Brown was the one who defeated Richard Nixon when he ran for California governor.


Reagan entered the gubernatorial race during Brown’s ill-advised bid for a third term. By then, Brown was vulnerable. He was weak on law and order issues (a flaw I had far less appreciation for back in my unrealistic liberal days, than I do now). And Governor Brown was embarrassed by the UC campus demonstrations, due to the Vietnam War, something Reagan’s operatives quietly exploited.


Reagan, the challenger, was an actor, seemingly coming out of nowhere. At the time, I had the deepest misgivings about Ronald Reagan’s capacity to run a state – a Hollywood actor!


Then, after Reagan’s election (his signature is on my law diploma), I was privileged to get to know several of his key staff people, and through them I learned of the others.  I met Ed Meese, who later became Attorney General; I knew D. Lowell Jenson, a democrat who served as the head of the Reagan Justice Department’s Criminal Division (who later became a highly respected federal judge).  And I knew Kirk West, who served in various roles in the Reagan statehouse. Through these and other contacts I was able to assemble a picture of the Reagan staff.


It was an impressive group with a skill, depth and quality that was unprecedented for California state government.


When Ronald Reagan moved into the White House, he brought with him key members of his California staff. As President, Ronald Reagan had the most competent staff of any president since Dwight David Eisenhower.


And Trump?


Whatever policy differences one might have, and whatever the ultimate verdict of history on the Reagan presidency, his presidency proved decisively that a good staff is absolutely essential to good governance. Reagan’s staff was first rate. Bill Clinton’s first term floundered because the former Arkansas Governor had poor staff support.


The contrast between Ronald Reagan and Donald Trump is stark.


“The Donald” appears to be the hollow candidate in the race, the walking, talking mirage, the one POTUS aspirant without experts, without even a detailed policy outline – other than his trademark fogball slogans. As of now, Trump appears still to be winging it, as a man without a staff worthy of a President. At times Trump looks like a man on a high wire, holding the attention of the crowd, saying in effect – “Look at me! I’m still up here!”


What happens when he is on the ground?


Donald Trump is seeking the highest executive position in the free world, standing on a high wire without a strong policy portfolio, and with no visible presidential staff.  Presumably Mr. Trump thinks he can hire the necessary people at the last minute. One wonders if it has dawned on him yet that he will be legally required to put all his business ventures into a blind trust for the duration of his service. Of course, there are a number of reasons why someone in Donald Trump’s position would want to remain vague and fluid on concrete proposals, and to refrain from identifying specific experts and key staff members – assuming he has yet figured out who he even wants. But most of those reasons (still working on it, not ready yet, having recruiting issues) are no longer defensible.


The real reason to me stems from Trump’s shrewdness.


As soon as a candidate in his position starts to flesh out the prospective governance picture, to color in the lines, to fill the blanks, that candidate will pierce the bubble of unreasonable expectations. And with that “pop,” the fake halo is exposed. Donald Trump will then risk becoming that TV personality and real estate developer guy who wants us to trust him with the future of the United States of America. And based on what? Trump Tower? A few slogans? An honest face?





Trump’s position on the issues is deliberately vague, except where he wants to make a splash.  He straddles the abortion issue, in effect taking both sides, safely out of the discussion.


Trump has the gift of making simple, pungent statements that convey a feeling, an attitude, without revealing much more. They are like party one-liners. The style is cunning. When he supported waterboarding terrorists, he didn’t bother talking about interrogation effectiveness or the legal definition of torture. In effect, he just said, Why are we worrying about the feelings of these scumbags? They had it coming.  Most ordinary people were not shocked, because he was speaking for them.


What about foreign policy? Aside for a declared admiration of Putin and a promise that “The Donald” will broker an evenhanded deal between the Palestinians and Israel, Otherwise, we have a resounding foreign policy silence.


What about the economy? Or its cousin – monetary and trade policies? Trump appears to be willing to depart from the approved free trade policy by deploying protectionist measures as a weapon to get Mexico to fund a border wall. And the rest of the economic issues? Trust me. I’ll come up with something.


What about education? The stressed and shrinking middle class? Your guess is as good as mine.


But Trump did stake out a borderline censorship position on free speech, First Amendment law notwithstanding. Here’s what he has said:


“I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. … So that when The New York Times writes a hit piece, which is a total disgrace — or when The Washington Post, which is there for other reasons — write a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”


We are entitled to ask: Who is giving Donald Trump constitutional law advice? In the landmark Supreme Court case, New York Times Co. v. Sullivan376 U.S. 254 (1964), any libel suit against the press must meet the actual malice test, meaning that a publisher can only be held libel if the offending story is false, damaging and that the publisher actually knew that it was a lie at the time.


No one can be sure where a “hit piece” (see above) fits into this test, or whether Trump criterion, “purposely negative and horrible and false,” would ever pass First Amendment scrutiny.


But his threat of increased litigation against the press, “we can sue them and win lots of money,” will have a chilling effect on free political discourse. Whether most Trump-engendered lawsuits fail or succeed is beside the point. The ongoing litigation threat becomes form of censorship. And Donald Trump can be thin skinned.


I am far from comfortable with this. I suspect that Donald Trump is not about the constitution. He’s about Donald Trump.


So Why Trump? Why Now?


Donald Trump is an opportunist.  Now, he is the political opportunist who saw a political opening in the GOP and went for it.


Trump seems to actually believe that his self-confidence and sales abilities can make up for any deficit in his policy credentials and political governance experience, and that – when he gets around to it – he can hire all the help he needs.


Donald Rumsfeld talked about the unknown unknowns, the problem that careless policy makers (and physicians) fall into when they think they know everything – because they do not know enough to ask for more information.


Candidate Trump does not seem to have any curiosity.


We are entitled to ask: Is he motivated by patriotism? One suspects he is unable to distinguish between love of country and its institutions and love of himself and the smell of victory.


The American people are poorly equipped to tell prophet from profit, a celebrity from snake oil salesman, a message they want to hear from one they should hear.  They/we are living in the cyber age where electronic devices flood us with a torrent of information. This is a tsunami of un-vetted, untrustworthy information. Every day we venture into the internet, we must confront an info-swamp that can hide wisdom under an avalanche of slogans, and conceal truth under a mountain of advertising gimmicks.


Low information voters are the new normal.


As Hillary once argued, the Democrat party failed to vet young Obama. Now, as Hillary’s medical and legal issues loom, it is painfully clear that someone failed to vet her.


If we fail to vet Donald Trump now, it may never happen.


Where the presidency is concerned, the American electorate seems to be behaving like a lovesick teenager, disappointed by one romance, then rebounding to the opposite type. Obama was the anti-Bush. And now Trump is the quintessential anti-Obama.


So, really, what is behind the Trump mirage?


An adult electorate would demand to find out before it’s too late. To date, Donald Trump has been treating us as gullible children.


So my question is this: Are American voters still adults?




Copyright © 2016 by Jay B Gaskill, Attorney at Law


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