Wishing Ivanka Trump a Merry Christmas

            Ivanka Trump was born a Christian and raised as a Presbyterian, but she fell in love with an Orthodox Jew.  As do many gentiles who want to marry Jews, Ivanka Trump converted to Judaism.

            Converting to Judaism is no easy thing.  You really have to want it; Rabbis are loath to perform a conversion if the only reason for it is to facilitate a marriage.  In accordance with Jewish tradition, Rabbis are supposed to do whatever they can to discourage conversions.  To become a Jew, particularly under the auspices of an Orthodox Rabbi as Ivanka Trump’s is, often takes years of study.  It also involves a commitment to live in accordance with Jewish laws—including Sabbath and dietary observances--and a commitment to raise one’s children as Jews.  People who want to convert have to do all these things well before an Orthodox Rabbi will permit a conversion to be finalized.

            Ivanka Trump has done all of these things.  As is the case with most converts, she probably knows more about Jewish law, observance, and custom than most natural born Jews do.  During the Sabbath, which runs from Friday night at sunset until three stars appear in the sky on Saturday, she is absolutely unavailable for any business or business related purpose—including politics.  She cannot drive, ride, fly, handle money, watch television, listen to the radio, or even talk on the phone during the Sabbath.  She has adopted “Yael” as her Jewish name.  She sends her daughter to a Jewish Day School. And it is doubtful that she will be able to eat at her father’s new digs at 1600 Pennsylvania Avenue because the White House does not have a kosher kitchen, a Rabbi on staff who supervises food preparation, or any assurance that the food, the plates and the silverware that comes out of the White House kitchen conform to Jewish dietary laws.

            While on his “Thank You Tour” in Michigan, Trump wished the crowd a hearty “Merry Christmas.”  And then he added:

We’re going to start saying Merry Christmas again. . . How about all those department stores?  They have the bells, and they have the red walls, and they have the snow, but they don’t have “Merry Christmas.”  I think they’re going to start putting up “Merry Christmas.”

            Do you suppose that Donald Trump wants people to wish his daughter, her husband, and her children “Merry Christmas?”  Is that the way the President-elect will greet them on Christmas, which, this year, coincides with Hannukah?

            I understand how important Christmas is to some of my Christian friends, and I have great respect for them and the way they celebrate their holiday.  Christmas spirit simply fills them with joy, and they want to share that joy with everyone else by extending to everyone with whom they come into contact a traditional Christmas greeting.  I understand that the spirit and good will behind the words they use is the real greeting.  I’m all for peace on earth and good will toward all.  But still, as an American Jew, the greeting is hard to accept.

            Part of the reason we extend a greeting to someone is simply to show respect for them; we consider inappropriate greetings to be insulting.   We’d likely call for the punishment of a child who addresses his or her teacher—or almost any other adult--by his or her first name.  Failing to stand when a judge enters his courtroom can subject a person to a fine or even jail time.  You’d never call a man “boy,” and I pity the fool who calls a grown woman “baby.”  We always call a physician “Doctor” to acknowledge his or her education and specialized training, and if you are looking for a job, the last thing you want to do is address the hiring manager by his or her first name, unless you have been invited to do so.

           A person who addresses another person in a way the greeter knows is inappropriate is simply being rude and disrespectful.  Thus, a Christian who knows that Ivanka Trump is Jewish but wishes her Merry Christmas anyway is being disrespectful.  Christmas is a Christian holiday that Ivanka Trump is not going to celebrate.  A wish for her to have a Merry Christmas is really a wish for nothing.  It’s like congratulating a person on his or her wedding despite the fact that the person isn’t married or getting married any time soon.

            But I would go a step further.  The only time a “Merry Christmas” is appropriate is when the greeter knows that the person he or she is greeting is a Christian who celebrates Christmas.  That kind of a greeting acknowledges the individuality of the person being greeted by recognizing something personal about that person.  That’s why “Happy Holidays” or even “Seasons Greetings” is a much more appropriate greeting to extend to strangers.

            I suppose I could let some of this go by just chalking mindless “Merry Christmas” greetings up to as simple boorishness, except for one other thing.  This particular greeting is also about power and privilege.

            When American Christians insist that Merry Christmas is the correct late December greeting in the United States, what they’re actually saying is that there are simply too few other people in this country who aren’t Christians to worry too much about what that small minority thinks or feels.  It says that the greeter didn’t care or couldn’t be bothered to remember that every American is not a Christian.  It says to non-Christians that the U.S. is a Christian country, and that those of us who aren’t Christians ought to either ignore who we are and get with the program or simply get out of the way.  It shows no respect for us.

            And that is why those department stores President-elect Trump was railing against don’t say “Merry Christmas.”  The last thing a business person wants to do is to show disrespect for a potential customer.  Inclusiveness facilitates the making of money.

            So, to all of my Christian friends, I wish you the merriest Christmas ever.  And to everyone else, may these last days of December be filled with light, family, good friends and, if you are so inclined, a fulfilling holiday observance.      

Abolish the Electoral College

           The Electoral College is undemocratic.  But so are a lot of other things in the American constitutional system. Given the fact that Hillary Clinton won more votes than anyone else in American history except for Barack Obama but will lose in the Electoral College, it’s fair to ask whether we get anything of value in return for using the undemocratic Electoral College process to elect a president.

            The Electoral College exists because the Framers couldn’t settle on any better way of selecting the president.  While some of the Framers wanted the president to be selected by popular vote, most weren’t particularly thrilled with the prospect of letting the great unwashed play a dominant role in the president’s election.

            But, because they also didn’t want Congress to select the president—that would make the president subservient to Congress and would, therefore interfere with the separation of powers inherent in the Constitution’s design—the Framers tossed the problem to the states by creating the Electoral College.  It was their hope that the states would select electors who would make a judicious evaluation of available candidates and select people with the gravitas, restraint, and wisdom necessary to serve as the country’s chief executive.

            In short, they hoped the electors would select people of George Washington’s caliber every time.

            What they came up with didn’t quite work.  In the election of 1796, John Adams, a Federalist, received the greatest number of electoral votes and became President.  His bitter rival, Thomas Jefferson, came in second and became the Vice President.  Neither Adams nor Jefferson was pleased.

            Four years later, Jefferson ran for president on a ticket that included Aaron Burr as Vice President.  Jefferson and Burr won the election, but Burr received the same number of electoral votes as Jefferson.  Burr wasn’t particularly loyal to Jefferson and wouldn’t cooperate in breaking the deadlock.  The election provoked a constitutional crisis and had to be decided by the House of Representatives. It took seven days full of intrigue and political maneuvering to resolve it.

            We adopted the 12^th Amendment in 1804 to address these problems created by the Electoral College system.  The 12^th Amendment required state electors to specify their choices for president and vice president separately.  But it kept the basic system in place.  It did not mandate the selection of electors by popular vote and it did not require the states to award their electors by the winner-take-all system currently used by every state except for Nebraska and Maine.  Under the 12^th Amendment, a state can still allocate its electors however it wants to.  It can even ignore the results of the popular election in the state and give the governor and/or the state legislature the power to select electors.

            For most of our history, the winner of the popular vote has also been the winner of the Electoral College vote.  But there have been five presidents who won the Electoral College vote despite losing the popular vote.  Two of those popular vote losers—George W. Bush and Donald J. Trump—won their offices in the last 16 years.

            Without focusing on the quality of the people elected, what do we get in return for using this undemocratic system?  Proponents claim three major advantages:

Candidates will pay greater attention to smaller states—The argument is that were we instead to use the popular vote to select the president, candidates would spend all of their time in the ten states—California, Texas, Florida, New York, Illinois, Pennsylvania, Ohio, Georgia, and North Carolina—where a majority of the U.S. population resides, leaving the other 40 states on the sidelines.

            The basic flaw in this argument is that it assumes that a candidate will be able to carry 100% of the votes in each state.

            Ridiculous.

            These are all highly diverse states that have never in recent history elected a statewide officer by acclamation, and it’s completely unlikely that a candidate could engineer a complete shutout of the other candidate in even one state, let alone all 10.  What is more likely is that the candidates would split the votes in these states, requiring them to aim for votes elsewhere.

            In the last campaign, the presidential candidates focused over 2/3 of their campaign visits on just six states—Florida, North Carolina, Pennsylvania, Ohio, Virginia, and Michigan—home to less than 23% of the U.S. population. 25 states didn’t merit a single visit from either presidential candidate.

            That means that candidates fought harder for votes in Ohio than they did for votes in California.  Eliminating the Electoral College would put every voter on equal footing.  Candidates would fight everywhere for each vote, making it more rational for voters in non-battleground states to vote.  Every vote would matter.  It’s not surprising that voter turnout rates are higher in the battleground states where voters expect the contest to be close and want their votes to matter.

The Electoral College forces candidates to pay attention to groups that have small national populations but are nevertheless pivotal in key states—Here, Electoral College apologists point to groups like blacks, Jews, and Latinos and argue that their voices would be drowned out as politicians seek to gain favor with white Christians, who still constitute the dominant share of the U.S. population.

            In the first place, there isn’t a reason that blacks, Jews, Latinos, or anybody else ought to have a disproportionate influence over presidential elections.  If democracy means anything, it means that everyone gets an equal vote.  The right way for small groups to try to influence national policy is by using their influence within states to elect Senators and Members of Congress to represent them.

            But, second, if politicians must compete for every vote, it’s not clear that smaller groups wouldn’t gain the attention of competing presidential candidates.  Hillary Clinton made a concerted effort, in the last election to win the votes of minority groups, and on the national level, she won 89% of the black vote, 66% of the Latino vote, 65% of the Asian vote, 71% of the Jewish vote, and 67% of atheist vote, and that’s not all because she wanted to win Ohio or Florida.  With numbers like those, it’s hard to imagine that the voices of these smaller groups weren’t heard.  Indeed, it’s the Electoral College system that’s about to drown them out.    

Without the Electoral College, there would be a free-for-all in which the presence of a large number of candidates would result in the election of a president who received only a plurality of the vote.

            It’s not unusual in the U.S. for presidents to be elected by pluralities.  In addition to the men who became president despite losing the popular vote, Presidents Clinton, Nixon, Kennedy, Truman, Wilson and Lincoln were all elected by pluralities.

            But, if Electoral College apologists are really worried about it, there is a ready solution: Instant Runoff Voting.  In Instant Runoff Voting, every voter submits a ballot in which his or her preferences are rank ordered.   In the last election, for example, a voter might have ranked Libertarian Gary Johnson first, Jill Stein second, Hillary Clinton third and Donald Trump fourth.  When the votes are counted, all votes are allocated to the candidate who is each voter’s first choice.  If no candidate has a majority, the candidate who received the fewest votes is eliminated, and his or her votes are reallocated to the candidates who are the voters’ second choice.  The process continues until one of the candidates has a majority.

            In this case, suppose Gary Johnson received the fewest votes.  Johnson would be eliminated, and our voter’s vote would then go to Jill Stein.  Assuming that no candidate has a majority after the reallocation of Johnson’s votes, were Stein to have the next fewest votes after reallocating Johnson’s votes, Stein would be eliminated and our voter’s vote would then go to Clinton.  Sincere there would then be only 2 candidates remaining, one of them would necessarily have a majority after Stein’s elimination and the reallocation of her votes.

            Democracy is lacking in this country and frankly, I have my doubts that as presently configured, we can prevent our society from collapsing into tyranny.  Getting rid of the Electoral College would be a big first step in assuring voters that their votes matter and that their voices will be heard.

             

Enter the Loyal Opposition

            Perhaps you’ve noticed my recent silence. 

            I have never been a Trump supporter.  And I’ve written several blog posts leading up to the presidential election where I insisted that it was highly improbable that Donald Trump would defeat Hillary Clinton.  Like so many others initiated into the cult of big data, in making my predictions, I discounted voter enthusiasm and made assumptions about political behavior that simply weren’t supported by the facts.

            Mea culpa, mea culpa.

            I share the shock and disbelief that a man like Donald Trump could win the world’s most prominent office.  I still have trouble saying or writing the words “President Trump.”

            But I have never been much on emotional reactions to things, good or bad.  Perhaps I’m one of the last men in my generation to be able to emote publically.  Or maybe, while I was a child, I spent too much time admiring Mr. Spock over Captain Kirk.

            So I’ve held my tongue.  I haven’t taken to the streets to protest the election, nor have I written anything about the fear I feel for the non-white members of my family and for my country.  I’ve not insisted that Mr. Trump’s victory is illegitimate nor have I condemned his supporters.  I’ve written before, under happier circumstances, that democracy requires a degree of good sportsmanship, requiring the losers to acknowledge the winners and to accept the notion that elections have consequences.  I still believe that.

            But no one should mistake my silence for anything more or less than good sportsmanship.  On the day after the election, I resolved to give Mr. Trump a chance.  But I also realized that good sportsmanship does not require me to sit idly by when I know what Mr. Trump and his supporters have said they want to do.  Patriotism does not allow me to turn a blind eye to the potential use and abuse of state power to undermine the values I believe this country stands for.

            For me, the first order of business during my period of silence was to try to understand what happened, to see if I was still living in a place transformed by hate, racism, and selfishness.  The data tell me that the world of November 9 is fundamentally unchanged from the world of November 7.  As of today, Hillary Clinton won more than 2 million more votes than did Donald Trump.  But for the atavistic Electoral College, we would now be talking about President-elect Hillary Clinton, not President-elect Donald Trump.  Democrats have now won the popular vote in six of the last seven presidential elections.

            Democrats also added two new members to the Senate and six more members to the House.  Given that all of these new members campaigned on the same platform as Hillary Clinton, reading the results of this election as a repudiation of the Democratic party would be a mistake.  Except for the fact that Democrats lost control of the White House—and that’s not something that should be minimized—November 8 wasn’t a bad night for Democrats, at least at the national level.

            What apparently happened on November 8 was less a repudiation of the Democratic party and more a repudiation of Hillary Clinton.  My own analysis, depicted in Figures 1 and 2 shows that most of the people who won Senate seats on November 8 substantially outpolled the presidential candidates. 

Figure 1

Figure 2

Only five of the 20 Republican winners received fewer votes than did Donald Trump in their states, and only 3 of 11 Democratic winners received fewer votes than did Hillary Clinton in their states.  In a highly polarized country like ours, this is not what we expect to see.  Instead, we should expect to see a “coat tails effect” in which the presidential candidate—the main draw on the ballot—has about the same or more votes than the Senate candidate who is drawing from the same partisan constituency.

            In other words, assuming that 2016 was not an exception to the declining trend in ticket-splitting that has occurred since about 1980, it appears that a large number of people from both parties declined to vote for the person at the top of their respective presidential tickets.  Hillary Clinton, despite her large, experienced and professionally managed turnout operation, simply didn’t give that turnout operation enough to work with.  She didn’t excite blacks, millennials, women and other minorities to turn out in the same numbers as did Barack Obama in 2008 and 2012.  “I’m not Trump,” was not enough of a reason for these voters to show up at the polls.

            It’s true that there were some Obama voters who switched to Trump in 2016. Relying on a New York Times analysis of Yougov.com data, Sean McElwee argues that not more than 7 percent of Obama voters flipped.  Much more important was the fact that “Trump was far more effective at getting non-voters and lapsed voters out than he was at converting Obama voters.”

            A  second order of business for me was to assess the likely damage Republican control of the White House and Congress for at least the next two years is likely to bring.  On economic matters, I think it’s not likely that the damage will be too extensive.  Despite what the small government types in the Republican party may think, the November 8 election results don’t presage a popular demand for less governmental intervention in the economy.  Four states—Washington, Arizona, Colorado and Maine—had proposals for increasing the minimum wage on the ballot.  Every one of these ballot issues passed.  While three of these states voted for Clinton, Arizona joins Alaska, Nebraska, South Dakota and Arkansas, red states that adopted minimum wage increases by ballot question in 2014. None of this is consistent with the “free market” approach to the economy the Republican small government crowd espouses.

            And, according to a PRRI/Atlantic survey taken after the election, almost 6 in 10 voters favor tax increases on people who make more than $250,000 a year.  Though only about 4 in 10 Republicans favor such a tax increase, when we focus on Republican voters who favored Trump in the primaries over fellow Republican Ted Cruz, almost half support the policy.  Trump’s also said he wants a tax cut, but like almost all of his predecessors, he’s likely to find that he simply can’t cut taxes and do the other things he’s promised without running up ruinous deficits.

            Given things that Donald Trump said during the campaign, I’m also not expecting big changes in the Medicare or Social Security.   Older people were a key Republican constituency, and I can’t imagine that they’ll sit on their hands if Republicans try to tamper with these programs.  In fact, now that Republicans have complete control of the government and can’t count on a Democratic president to backstop economic recklessness, I’m expecting that whatever support Paul Ryan had within his caucus for "voucherizing" Medicare and privatizing Social Security to evaporate.

            Obamacare, too, isn’t likely to fade quietly into the night.  Voters have long railed against Obamacare while simultaneously indicating support for its key benefits.  Once Republicans figure out that they can’t have those benefits without paying for them through something like the individual mandate, it strikes me as unlikely that Republican members of Congress will vote to take those benefits away from their constituents. 

            The real problem rests with the Supreme Court justice Donald Trump will be able to impose on us as well as with all of the actions he can take as president and those his appointees can take in his name.

            Fortunately, the seat Trump can fill formerly belonged to arch-conservative Antonin Scalia who had only moderate influence over the court.  The appointee will not change the court’s ideological balance from what it was prior to Justice Scalia’s death.  For Democrats, this appointment is a lost opportunity.  We have to worry if Justice Kennedy, Justice Ginsburg or Justice Breyer dies or retires.

            But Trump’s executive branch appointees, such as Jeff Sessions who has been tapped to become Attorney General or whoever he picks for Director of the Environmental Protection Agency can do a lot more mischief merely by deciding how to prioritize limited resources.  Sessions, for example, could hold back on enforcing civil rights laws or voting rights laws.

            And that brings me to my last reaction to this election: activism.  I’ve decided that while I’m ready to give Trump a chance, I’m going to be exercising a heightened level of vigilance.  I’ve already made new contributions to the American Civil Liberties Union and People for the American Way.  I’ve drafted and sought signatories for a pledge obliging signers to stand up against hate and bullying.  I’m prepared to stand up against any plans to create a Muslim Registry and even to identify myself as a Muslim on such a registry despite the fact that I am a committed Jew.  I’m going to press for a Constitutional Amendment abolishing the Electoral College.  And you’re going to see a lot more writing from me when I see Donald Trump or his appointees taking actions that I think are contrary to our country’s norms and values.

            For my part, I’ve resolved to be part of what parliamentary systems call “the Loyal Opposition.”  As part of the “Loyal Opposition,” I stand firm in support of America’s Institutions, even though the Republicans now control them all.  But rather that sit silently, the job of the Loyal Opposition is to challenge the governing party, to hold its feet to the fire, and point out its broken promises and failures.  Progressives are in for at least two and probably four long years on defense.  The people are still with us, and Donald Trump isn’t and has never been an ideological conservative.  We just need to remember, in the words of college football coach Dave Thorson, it’s “offense that sells the tickets, but it’s defense that wins the championships.”

            I’ve been around long enough to know that election results like these don’t last.  Only 4 years after Republican Barry Goldwater suffered a landslide defeat to Lyndon Johnson, taking a large number of congressional Republicans down with him, Richard Nixon won two terms as president.  Six years after Watergate cut the number of congressional Republicans to the lowest level ever, Ronald Reagan won the presidency in a landslide with big enough coat tails to capture actual control of the Senate and working control of the House.  And, 8 years after Barack Obama and the Democrats won absolute control of the White House and Congress, the tables have turned, giving Republicans absolute control.  
   
           Let’s see what happens in 2018.

Not Guilty

FBI Director James Comey has just issued a letter to Congressional leaders that “In connection with an unrelated case the FBI has learned of the existence of emails that appear to be pertinent” to the previously closed FBI investigation of Hillary Clinton’s private email server.  Comey doesn’t yet know whether these new emails are “significant” or how long it will take to fold new investigative work on these new emails into the FBI’s previous work.  He released the letter as a “supplement” to his previously testimony about the email server to Congress. 

I’m not going to speculate as to what’s in the new emails or why these emails hadn’t been discovered prior to the time the FBI closed its case on the matter last summer.  And nobody else should either.  

But I have to say that this matter is annoying, and not just because I support Hillary Clinton.  The key issue is whether Clinton intended to violate a statute aimed at preventing people from stealing government information and intentionally delivering it to people who shouldn’t have it.  I’ve been a lawyer for over 35 years, and, having heard the arguments, I believe the FBI Director was right the first time when he concluded that “no reasonable prosecutor” would bring a case against Clinton with the facts the FBI had discovered.   Even if Clinton’s behavior was “extremely careless,” extreme carelessness is not a crime. 

There’s a bigger issue here, and it applies as much to Donald Trump as it does to Hillary Clinton.  The partisans on both sides of the aisle are trying to apply a lawyerly rule of strategy to this election that makes sense in the courtroom but not in the arena of public opinion.  One of the first things they teach you in law school is that it’s often better to try to win your case on procedural foot faults where the rules are clear—your opponent filed late, filed in the wrong court, didn’t use the correct size paper in its brief or pleadings, for example—than it is to venture into a trial on the merits where a judge may have the leeway to rule against you.  A win, after all, is a win. 

In this election, it seems that both sides want the other side to be “disqualified,” either because of the improper handling of governmental documents in the case of Mrs. Clinton or because of the improper handling of female body parts or fraudulent business practices on the part of Mr. Trump.  Rather than taking their cases to the voters, both sides seem to want to win on anything but the merits of the policies they support. 

That is no way to run a democracy.  In a democratic election politicians, stand before their peers—the citizens of this country—who will render judgment, not just on the policies they espouse, but on them as people.  Why should anyone, in this democracy, want lawyers, prosecutors or judges to play the role democracy assigns to the people? 

The law that both sides insist should be followed to the letter is but the embodiment of the community’s judgment about what should or should not be done, and about how transgressions of that judgment ought to be addressed.  In our country, due process requires the community to set out specifically what it will tolerate and what it won’t.  We simply do not punish people for things that they do that may enrage us unless we have first given them clear notice of the particular things that will lead to punishment in the form of a statute.  And we don’t punish anyone unless and until the community, usually in the form of a jury, decides beyond a reasonable doubt, that each element of the statute leading to culpability has been violated. 

We use juries to make decisions about culpability because it is impractical to have the community at large sitting in judgment on every case.   Because we want to avoid arbitrary judgments from small groups of people, we typically require either unanimity or near unanimity before we allow the state to deprive a person of life, liberty or property. 

We require juries to be impartial, and we take great care to insure that jurors learn about the people and the things that they have done anew.  In appropriate cases, we even move court proceedings  to distant locations where the people who make up the jury pool are unlikely to know anything beforehand about the people they might be judging. 

We are in the last two weeks of a national election.  It is absurd to think that either of these two candidates could get a fair trial in front of an impartial jury anywhere in the country.  Both of these two candidates are extremely well known, and it’s simply implausible that anyone in this country hasn’t formed an opinion about their characters or the things they have been accused of doing.  Despite any instructions a judge might give to a jury about how to resolve the fates of these two people, there isn’t any reason to think that a jury wouldn’t go beyond the law, exactly the way that the Supreme Court went beyond the law in Bush v. Gore.  It’s hard to imagine that a jury—12 citizens--wouldn’t be influenced by the realization that it alone has the power to decide who, as a practical matter, will be president.  

That is why, despite the reasonable assertion that both of these two people ought to be treated just like anyone else accused of potentially criminal behavior, it is unreasonable to think that either of these two people could possibly be treated like anyone else.  The implications for the health of American democracy of letting the FBI, a prosecutor, the Justice Department, a judge or a 12-person jury decide who will be president require that Clinton and Trump be treated differently. 

The best way to deal with Secretary Clinton and Mr. Trump is simply to let the people at large serve as the jury.  With respect to Secretary Clinton, the facts of her case have been extensively litigated in the court of public opinion and before Congress.  By now, everyone knows what she did and is in a position to decide for themselves whether what she did makes it unwise to trust her with national security.  If it does, vote against her. 

Mr. Trump’s case, too, has also been heavily litigated in the court of public opinion.  Everyone now has extensive evidence about Mr. Trump’s attitude and actions with respect to women.  Everyone knows that multiple contractors have claimed that Mr. Trump failed to pay them in accordance with the terms of their contracts.  And everyone also knows that Mr Trump's "university" has been accused of defrauding students.  If you believe that Mr. Trump is too unsavory a character to be the President of the United States, vote against him.  

I am well aware that the analogy I am making to trial by jury is imperfect.  But, what’s really at stake here isn’t whether either of these people receives a relatively mild sanction.  Given what has happened to people like David Petraeus or Sandy Berger  it’s not likely that anyone would  lock Clinton up. Even if applicable statutes of limitation did not protect Trump from prosecution, sexual battery is a minor crime that’s not ordinarily prosecuted unless the touching was egregious, most of the other things he's been accused of are the stuff of civil lawsuits.  What's at stake here is which one of these people (and the factions that support them) should govern.  And that is a call we all should make through a fair democratic process.  It should not be left to prosecutors, lawyers or 12 angry men.