Tag Archives: Supreme Court

That Flushing Sound You Hear

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… is the credibility and the last scrap of integrity of the Washington Post’s Editorial Board being flushed down the toilet of history.

I was stunned this morning to read this morning that the Post’s Editorial Board has undertaken to undermine former Special Counsel Jack Smith’s argument that (1) Trump’s knowingly false claims about the 2020 election were not First Amendment protected speech, and that (2) Trump’s attacks on the prosecutor and his staff, which led to multiple death threats, were not First Amendment protected speech. Adding to that gross distortion of First Amendment jurisprudence were the snide and facially absurd claims that Smith was “seeking to muzzle a candidate for high office” and that his efforts “probably helped Trump win the 2024 election.”

No mention of the Post’s decision to withdraw its endorsement of Kamala Harris, forced on it by Post-owner, Trump supporter and financial beneficiary thereof Jeff Bezos. One cannot help but wonder what role Bezos is playing in directing the positions of the Editorial Board now.

In my semi-skilled understanding of the First Amendment and a fair reading of what Smith actually said in his deposition, the Post’s Editorial Board has deliberately misread and misstated what Smith said and what he did as Special Prosecutor to try to bring Trump to the justice that he has now, once again, completely escaped.

The EB says, “the indictment accused Trump of lying so pervasively about the election that he committed criminal fraud.” What Smith actually said, in response to a question suggesting Trump’s knowing lies about the election were protected by the First Amendment, was that the fraud exception to First Amendment immunity was well-established law, a statement that is unquestionably correct. The fact that other politicians in the future might try to claim such protections for their own make-believe versions of events in the future is no reason to exempt an out-going president/candidate from a knowingly-false and frequently pressed version of events designed to prevent the application of constitutionally-sanctioned actions are/were at the core of the peaceful transfer of power on which our government system is based.

If the Post’s EB has its way, future politicians will not only be able to press phantasmagorical versions of events on the public at will, but they will be able to do so in the cause of preventing the electoral process from functioning as it was intended (let’s not forget Trump’s fake electors scheme that, as Smith recounted, proved to be even a bridge too far for some of Trump’s devoted acolytes).

The EB labels Trump’s multiple knowingly false statements about the 2020 election as only “odious” and in keeping with the claims of other politicians who, not unusually, “take factual liberties” that constitute mere “misdirection” that should be addressed by “public scrutiny” rather than prosecution.

Perhaps equally preposterous is the EB’s claim that while “of course fraud is a crime,” it’s usually just about lying to get money, “not political advantage.” “Most political speech is aimed at influencing government functions.”

Maybe that was true before Trump but prosecuting a politician for what the EB backhandedly admits were “brazen and destructive falsehoods” will “inevitably” lead to exploitation by some future prosecutors “with different priorities” has already occurred and has nothing to do with what Jack Smith thinks. In case the EB is unaware, given Trump’s disposition to disregard court decisions, Trump, armed with the criminal immunity protection awarded him by the Supreme Court, Trump’s Justice Department is now serving as Trump’s personal counsel in trying to prosecute his “political enemies.” It is entirely a function of the collapse of democratic guardrails under a president who has no idea about and no interest in complying with the United States Constitution. The Post’s EB cannot be aware of what has happened since Trump took office. But with Bezos calling the shots now, it doesn’t seem to matter.

It was especially interesting, I thought, that the EB thought Smith’s efforts to obtain gag orders against Trump’s attacks and personal threats would simply “interfere with the legal process.” While Smith no doubt believed that was true, his argument was that Trump’s attacks were jeopardizing the safety of the people working on the cases and that such attacks needed to be restrained because they could, in ways obvious and not, to influence how the prosecution was conducted.

Yes, the courts limited the scope of the protections Smith sought. That’s what courts are for. Only the most willfully blind and/or indifferent observer could not see that Trump had and continues to have the support of the courts for most of his most egregious conduct. Of course, Trump can, and always could, claim he was being unfairly prosecuted, but that is not what he was doing. The EB’s claim that Smith had a “cavalier attitude toward constitutional safeguards” is the height of hypocrisy, given Trump’s total disregard for the Constitution that he has expressly stated he does not support notwithstanding his oath of office to the contrary.

The EB’s final swipe is to criticize Smith for seeking what it calls the “phone records” of Republican members of Congress, including House Speaker Kevin McCarthy (does the EB think the Speaker of the House is also immune from criminal conspiracy?) Smith addressed the issue of those phone records in detail during his deposition. The records sought were toll records, showing who was calling whom but nothing about the content of the conversations.

Apparently, the Washington Post is perfectly fine with members of Congress conspiring to break the law and defy the Constitution. I, on the other hand, am delighted that we had an experienced prosecutor aggressively seeking justice and enforcement of the Constitutional principles that have sustained our country since June 1788. Our democracy now hangs by a thread. It is past time to take it back from Trump and his fascist fanatics. Trump/Vance must be removed.

Harvard, Tell the Clown Prince to F*ck Off

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Late yesterday, reports stated that the Department of Homeland Security, headed by dog-killer Kristi Noem, acting on instructions from Donald Trump, purported to revoke Harvard University’s certification of admit foreign students who account for more than one-quarter of the enrolled student body.

The pretext for this latest violation of law, the Constitution, and common sense, and without evidence, was that Harvard was allowing:

anti-American, pro-terrorist” foreigners “to harass and physically assault individuals … and obstruct its once-venerable learning environment.” The secretary also accused the university of working with the Chinese Communist Party by hosting and training members of its paramilitary group.

 As reported by the Washington Post,

The decision means Harvard can no longer enroll foreign students, and existing international students at Harvard must transfer or lose their legal status, Noem said.

Noem gave the school 72 hours to turn over a list of records on international students to regain its certification before the upcoming academic year. DHS is seeking disciplinary records as well as electronic records, video and audio footage of international students who engaged in illegal activity, violence, threats to personnel or students, or protest activity on or off campus over the past five years.

Since neither Trump nor Noem appears to have any awareness of what goes on at our most important institutions of higher learning, we can perhaps see in Noem’s hostility the underlying resentment of what they neither know nor appreciate:

It is a privilege, not a right, for universities to enroll foreign students and benefit from their higher tuition payments to help pad their multibillion-dollar endowments. Harvard had plenty of opportunity to do the right thing. It refused. Let this serve as a warning to all universities and academic institutions across the country.

And there is this:

“Harvard has turned their once-great institution into a hotbed of anti-American, antisemitic, pro-terrorist agitators,” said White House spokesperson Abigail Jackson on Thursday. “They have repeatedly failed to take action to address the widespread problems negatively impacting American students, and now they must face the consequences of their actions.”

Evidence? Compliance with procedures? The Clown Prince cannot be bothered.

There you have it. The federal government now claims the right to decide what the “right thing” is for universities it regards as unaligned with its agenda.

This hubris, based on no evidence and not in compliance with legal procedures for decertification, is likely inspired by the worst-in-legal-history Supreme Court’s presidential immunity decision in which it created the doctrine that the president can commit crimes in office within the scope of his official duties under Article II and that his motives may not be questioned, all without criminal accountability.

It goes without saying, though I’ll say it anyway, that Noem’s message has instilled uncertainty and fear among Harvard’s 6,793 international students. But it’s worse than that.

More than 1 million international students attend colleges in the United States every year, contributing nearly $44 billion to the national economy, according to NAFSA: Association of International Educators.

They play an outsize role in the economics of higher education, in that many international students pay full tuition …. and by creating a critical mass of students to support certain departments, such as computer science and engineering.

It’s time to call the question. Donald Trump and the sycophants that do his bidding believe they are above the law. The Supreme Court indicated as much and, given an inch, Trump always takes the proverbial mile.

So, Harvard, stand your ground. You’ve done it before in the face of gross government overreach, and you have the resources, including one of the world’s great law schools (disclosure: my law school) to mount a compelling defense against this grotesque overreach by the federal government.

It’s interesting that the political party that for decades decried the growing power of the federal government at the expense of the states now applauds anything that Clown Price Trump says he wants. Trump is a fraud, a cheat, a fool, and is intent on destroying not only the greatest American institutions but on removing the authority of the United States from the world arena, leaving it to the likes of Vladimir Putin. One of the many losses resulting from the Trump administration’s embrace of universal ignorance is the loss of opportunity to spread the message of democracy to the world through the voices of international students who learn about and experience it here.

It’s time to call the question and Harvard, your number has been called. Stand up to this petty wanna-be dictator and let’s get down to the core question whether our Constitution will be obeyed or not. If not, then the question will be put squarely before the people as to whether they want a democracy or not.

Finally, in case Trump is considering calling up the military to take control of Harvard and compel its submission, all military personnel should re-familiarize themselves with the principles of Nuremberg. You have no immunity for complying with unlawful orders. Think before you act.

Update: Harvard has sued to stop the administration’s unlawful overreach, citing violations of the First Amendment, the Due Process clause of the Constitution, and the Administration Procedures Act. Good. Meanwhile, Harvard, press your response in the media. Don’t give Trump the advantage of sole occupation of the public space. You have  the horsepower so use it!

We Have Reached the End of the Line

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OR: The Trump Noose Tightens on the National Neck

The Trump administration, laced through and through with unqualified and incompetent appointees to positions of great responsibility, mistakenly snatches a man (Kilmar Abrego Garcia) off the street and, in the face of a court order to stop, puts him on a plane for a hellhole prison in El Salvador. The court orders his return. Trump’s Department of “Justice” declines and appeals. The Supreme Court majority eventually votes unanimously to order the administration to “facilitate” the victim’s return. In doing so, however, the Court gratuitously and unnecessarily “advises” the District Court judge to act with due regard for the separation of powers and the President’s supreme authority over foreign affairs.

As was 100 percent predictable, the administration leaps upon that advice and says “no thanks, we’re not going to bring him back. Mr. Garcia, charged with no crime, can rot in El Salvador for all we care and there is nothing you can do about it because this decision is made under the President’s Article II power to control absolutely the foreign affairs of the country, just as the Court suggested.”

Recall that in a prior decision this same Supreme Court held that the President could conspire with the Department of Justice to commit crimes, including the crime of trying to overturn an election he clearly lost, and could not be held accountable for his criminal conduct in office. Further, in carrying out his “executive powers,” the President’s motives could not be questioned.

So, here we are. A man properly in the United States, charged with no crimes, is ripped from his family and employment, hustled onto a plane full of others similarly situated for the most part, and imprisoned in a foreign country. With the apparent approval of the highest court in the land.

Trump then invites the dictator of El Salvador to the White House where that dictator labels as “preposterous” the question of his returning his prisoner to the United States. In a statement that is typical of people who consider themselves unbound by law, the Salvadoran President Nayib Bukele told Trump: “To liberate 350 million people, you have to imprison some. That’s the way it works.”

The power of courts to hold the federal government in contempt of court and sanction it or its attorneys is far from clear. https://www.congress.gov/crs-product/LSB11271 That is perhaps why the District Court judge, in whose face the Department of Justice has metaphorically spit, has thus far fumed and fussed over the DOJ’s recalcitrance but has not issued any form of mandatory punishment for its resistance to the court’s mandates. Likely the judge realizes that the Supreme Court, having recently pronounced the unprecedented and astonishing doctrine of presidential immunity for crimes committed in office, will not support mandatory sanctions against DOJ for its disobedience.

And we now hear the President of the United States and people who work for him remarking that the power to snatch people off the streets and imprison them in foreign countries permits the federal government to do this to American citizens as well as people like Mr. Garcia who were properly here under work permits but were not citizens. Many of us have seen the videos of armed men in blackened vans visiting people in their homes for what are ludicrously labeled by the men as “wellness checks.” And some people are literally being assaulted on the streets, arrested and hauled away with no formal charges, no due process, and no opportunity to get counsel. These behaviors are blatant violations of our criminal laws and the Constitution.

We have reached the point of no return. The President has made clear he will stand for no resistance to his wishes. It seems virtually certain therefore that we will soon experience a declaration of martial law and a presidential directive to imprison here or abroad, without trial or other due process, anyone the President or his compliant appointees selects for removal. Or maybe he won’t even bother with a declaration that he likely regards as superfluous.

If allowed to get away with this, the President will have completed his subordination of the Constitution and brought about his dictatorship over the United States. As insane as that future seems, there is little happening now that suggests it is an overblown scenario. Trump has repeatedly made clear that he regards the Constitution as authorizing him to “do whatever I want.” We are there now. He is doing whatever he wants.

It is beyond dispute that if he can with impunity deport and imprison Mr. Garcia, he can do it to anyone, including American citizens who cross him or are merely suspected of being “disloyal.” Anyone who has studied the history of dictators surely knows that is how the process works.

The question then becomes: who will stop him and how? Certainly not the Republican cowards in Congress who value retaining what they fancifully believe is their “power” over their oaths to support the Constitution. It was once believed that the senior military leadership would handle the problem, but Trump has replaced most of those who might have acted decisively to restrain him. The courts lack both the will and the mechanisms for holding the President to account.

Trump’s abuse of power is plain and open. He believes the law does not apply to him and that the Constitution grants him powers that the Founders would never have imagined. Who then will stop him? And when?

Where is the Moral Outrage at Nazis Running the Federal Government?

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OR: Trump Administration is Guilty of Kidnapping, Unlawful Transport & Crimes Against Humanity

The Washington Post reported on Saturday, April 5, that: 1) the Department of Justice that has admitted it mistakenly deported Kilmar Abrego García to a prison in El Salvador, and (2) DOJ has argued to an appellate court that the U.S. government is helpless to secure his return. https://tinyurl.com/yzm27mjy

In effect, the U.S. Department of Justice, an element of the Executive Branch of what was, at least prior to Trump’s re-election, the most powerful and influential country in the world, says it has no means of compelling or negotiating for Mr. Garcia’s return. This, even though the United States is paying El Salvador about $6 million to hold the group of deportees of which Mr. Garcia is a member.

In effect, Attorney General Pam Bondi’s Justice Department is arguing that it (1) deported Mr. Garcia by mistake, (2) violated Mr. Garcia’s civil rights, (3) violated Mr. Garcia’s rights under multiple amendments to the U.S. Constitution, not least of which was due process of law, (4) essentially kidnapped Mr. Garcia and unlawfully transported him to a foreign country where it relinquished control of him to a foreign government over which the United States has zero influence, (5) that the Judicial Branch of the U.S. government effectively has no remedial authority as against a decision of the Executive Branch regarding a foreign national “removal decision.”

In short, the US government is saying “who cares?”

These astonishing arguments reveal a fundamental error that the Trump administration continues to make. It appears to believe that the Executive Branch of the U.S. government is the final word on legal decisions even where, as here, the Executive admits it make a mistake that, in effect, may destroy a man’s family and perhaps forfeit his life.

I cannot resolve the conflicting claims as to whether Mr. Garcia was a member of MS-13 that has now been declared a terrorist organization by the Trump administration. However, the admission by the administration that Mr. Garcia’s deportation to El Salvador was mistaken would seem, regardless of anything else, to compel the U.S. government to bend every effort to secure his return. AG Bondi says, “no, we may have erred in deporting him, but we owe him no duties now and are helpless to do anything to rectify our mistake. Let him rot in El Salvador.”

This is a perfect illustration of why we insist on due process in this country. That process, which may be slow and even tedious, helps assure that grotesque mistakes like the Garcia case do not occur. The Trump administration has shown time and again that it has no regard for constitutional protections, and that it will arrogantly disregard any damage it may do in it rush to prove how tough it is on “crime.”

Now, after the government disregarded direct orders from a District Court judge to stop the deportation of Mr. Garcia and to provide him with the due process of law to which every resident is entitled under the Constitution, the Supreme Court has finally, days late, awakened to the inescapable realization that it can’t paper over this outrage. But in doing so, the “moral majority” on the Court seems singularly unmoved by the potential human catastrophe that the incompetent fools running the Trump administration have created.

We have grown accustomed, though hardly accepting, of Justices Alito and Thomas (that one, who takes hugely expensive favors from sponsors with business in the Court without a whimper from the Chief Justice) taking severe umbrage at decisions they consider insufficiently respective of Christian values. Now, when the government has monumentally screwed up a deportation case, putting at risk of death by gang execution, among other risks, a father never accused of a crime here or in El Salvador, all we get are lectures about the proper procedure for bringing the issue before the Court and about the lower court being more respectful of the President’s authority over foreign affairs.

How exactly the Garcia case implicates the President’s foreign affairs powers has not been fully explained. We know the obvious: El Salvador is a sovereign country and to retrieve Mr. Garcia from its clutches may require some negotiating. But it shouldn’t be that hard a problem. The US is paying El Salvador a lot of money to house the people it has snatched off the streets and out of homes — the way a good Gestapo does — and shuttled out of the country as fast as possible without even a nod to due process. It shouldn’t take a negotiating genius, as Trump claims to be, to figure out a way to induce the El Salvadoran establishment to release at least one man that our government admits should never have been sent there in the first place.

Yet our Supreme Court, while nodding to the continued need for due process of law and all the rest seems most concerned with lecturing the District Court judge, the main judicial authority standing up for Mr. Garcia, about not overreaching into the President’s foreign affairs prerogatives.  Is this a hint to Trump to slow-walk the entire business in the hope that Mr. Garcia will be murdered in the hellhole prison in El Salvador thereby solving the US government’s embarrassing problem? Is it a signal to Attorney General Bondi that her abject indifference to Mr. Garcia’s welfare is just fine if the US government just goes through the motions of seeking Mr. Garcia’s safe return?

Compare what has transpired. The District Court judge, closest to the evidence of what occurred here, found that Mr. Garcia’s removal, when the government knew an order was imminent to stop his removal, was a “grievous error” and that the risk to Mr. Garcia “shocks the conscience.” While DOJ claims Mr. Garcia is a member of the MS-13 gang, the District Court judge found that the government had not proved that claim:

That silence is telling…. As Defendants acknowledge, they had no legal authority to arrest him, no justification to detain him, and no grounds to send him to El Salvador — let alone deliver him into one of the most dangerous prisons in the Western Hemisphere.

The judge’s ruling against the government was sustained by a three-judge panel of the 4th U.S. Circuit Court of Appeals, based in Virginia, not exactly a liberal bastion of judicial decision-making.

DOJ, at the behest of the morally vacuous Attorney General appointed by Trump, claimed that the order to return Mr. Garcia was, despite conceded errors in deporting him to the El Salvadoran hellhole prison, “indefensible” because, golly, damn, it “commands Defendants to do something they have no independent authority to do: Make El Salvador release Abrego Garcia, and send him to America.”

“If this precedent stands, other district courts could order the United States to successfully negotiate the return of other removed aliens anywhere in the world by close of business,” Solicitor General D. John Sauer wrote. In simpler English, DOJ objects to being compelled to do its job because just imagine the horror of having to return “removed aliens” whose rights we have violated.

I haven’t read all the briefs, but reliable reports note that the “Government lawyers compared the administration’s power to bring Abrego Garcia back to a court ordering the administration to end Russia’s war in Ukraine or return Israeli hostages held by Hamas in Gaza.”

Arguments like that should have led the Supreme Court majority to, at a minimum, sanction government counsel for arguments lacking reason, precedent, and common sense. But no, the Court seemed more concerned with being sure no one stepped on the President’s authority in foreign affairs. No sense of moral outrage that the government conceded a terrible, potentially life-threatening and unconscionable error, then argued we should just ignore it and let the chips fall on Mr. Garcia who, after all, is, in the eyes of the Trump administration, a bad person, evil incarnate. The DOJ attitude recalled a segment from the Dragnet TV series of the 1950s. Detective Jack Webb captures a serial killer and asks him “what have you got against people?” The killer answers: “People? I got nothing against people. What do I care about people?”

The Americans arguing that the courts should butt out of this and leave Mr. Garcia to his fate apparently do not understand that if the government can do this to Mr. Garcia, it can do it to anyone. Indeed, there is talk of “removing” US citizens now.

In preparing this post for publication, I read that the government has balked at the timeline established by the District Court to explain what it’s going to do to comply with the court’s orders now reinforced by the Supreme Court. The judge, quite rightly, is having none of it. He should hold the government in contempt and, if necessary to get DOJ to comply, hold weekend hearings. This fiasco has gone on too long already and Mr. Garcia remains at risk.

Time to Face Reality

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As Trump’s proposed cabinet of losers, criminals, and traitors continues to take shape, it is perhaps time to face certain realities. I am reminded of the statements of several wise people over the years.

Alan Bennett, 90-year-old English playwright and creator of The History Boys, wrote, “History? It’s just one f***ing thing after another…”

You no doubt recall the famous line attributed to the philosopher George Santayana, but here is the full quote:

Progress, far from consisting in change, depends on retentiveness. When change is absolute there remains no being to improve and no direction is set for possible improvement: and when experience is not retained, as among savages, infancy is perpetual. Those who cannot remember the past are condemned to repeat it.

Many others, Winston Churchill among them, have reiterated the last line, usually as a warning, usually ignored.

A variation attributed to Eugene O’Neill was that “There is no present or future – only the past, happening over and over again – now.”

And, of course, President Lincoln stated in his address on June 16, 1858, at what was then the Illinois State Capitol in Springfield, after he had accepted the Illinois Republican Party’s nomination as that state’s US senator, an election he lost:

A house divided against itself, cannot stand.”

I believe this government cannot endure permanently half slave and half free.

I do not expect the Union to be dissolved – I do not expect the house to fall – but I do expect it will cease to be divided.

It will become all one thing or all the other.

Either the opponents of slavery will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction; or its advocates will push it forward, till it shall become lawful in all the States, old as well as new – North as well as South.

The wisdom of these statements is often overlooked. Not now.

The Republican Party needs a new name. The Republican Party is no longer conservative or patriotic. In the hands of Donald Trump, the GOP is threatening to reduce the federal government to a shadow of its current self and turn such political power as remains outside Trump’s personal dictator hands to the states.

So, let us take a spin through some history that Trump and his billionaire shills have either forgotten, never knew, or simply don’t think is relevant.

I refer to the Articles of Confederation. The Articles were the first “constitution” adopted during the Revolutionary War. The ConstitutionCenter.org explains it this way:

The Second Continental Congress approved the document on November 15, 1777, after a year of debates. The British capture of Philadelphia helped to force the issue.  The Articles formed a war-time confederation of states, with an extremely limited central government.  The document made official some of the procedures used by Congress to conduct business, but many of the delegates realized the Articles had limitations.

Two days later, Congress submitted the Articles to the states for immediate consideration. However, it took until March 1, 1781, for this “immediate” consideration to become final.

Here is a quick [edited] list of the problems that occurred, and how these issues led to our current Constitution.

    1. The central government was designed to be very, very weak.The Articles established “the United States of America” as a perpetual union formed to defend the states as a group, but it provided few central powers beyond that. But it didn’t have an executive official or judicial branch.
    2. The Articles Congress only had one chamber and each state had one vote.This reinforced the power of the states to operate independently from the central government, even when that wasn’t in the nation’s best interests.
    3. Congress needed 9 of 13 states to pass any laws.Requiring this high supermajority made it very difficult to pass any legislation that would affect all 13 states.
    4. The document was practically impossible to amend.The Articles required unanimous consent to any amendment, so all 13 states would need to agree on a change. Given the rivalries between the states, that rule made the Articles impossible to adapt after the war ended with Britain in 1783.
    5. The central government couldn’t collect taxes to fund its operations.The Confederation relied on the voluntary efforts of the states to send tax money to the central government. Lacking funds, the central government couldn’t maintain an effective military or back its own paper currency.
    6. States were able to conduct their own foreign policies.Technically, that role fell to the central government, but the Confederation government didn’t have the physical ability to enforce that power, since it lacked domestic and international powers and standing.
    7. States had their own money systems.There wasn’t a common currency in the Confederation era. The central government and the states each had separate money, which made trade between the states, and other countries, extremely difficult.
    8. The Confederation government couldn’t help settle Revolutionary War-era debts.The central government and the states owed huge debts to European countries and investors. Without the power to tax, and with no power to make trade between the states and other countries viable, the United States was in an economic mess by 1787.

George Washington, James Madison, Alexander Hamilton and John Dickinson and others met and proposed that all 13 states meet in Philadelphia to resolve the debacle. The current Constitution emerged from that meeting, was ratified, and then promptly amended by the Bill of Rights to cure certain glaring omissions in the original version. Constitution-making is hard work.

While the issues with the Articles of Confederation were clear, by the time of the Constitutional Convention white people in the southern states were deeply entrenched in the system of slavery on which their economy depended. Compromises were required and made in order to reach a constitutional document that could be promoted among the states for ratification. Without those compromises there would have been no Constitution and no country, at least not one comprised of all the former colonies and territories. Even then, ratification consumed two years and eight months. Ratification of the Bill of Rights took another year.

A very detailed history of the events leading to the Constitution may be found in https://www.britannica.com/topic/American-colonies/The-decision-for-independence if you have interest in it.

What lessons can be learned from this early experience with nation-making?

One is that in the modern world of, say, the post-WWII era, a “nation” in which the major powers are dispersed among many widely spread and independent entities (read “states”) is extremely vulnerable to nations with more power concentrated in a central authority. It’s true, of course, that the separation of what became the United States of America was driven in major part by rejection of the totally centralized power of the King of England. But that king’s authority resided in one person and was absolute.

Under the Constitution (not the Articles of Confederation), the power of the central authority, the federal government, was strong but restrained by several features built into the system, not least of which was the division of federal power into the three co-equal branches we call the Executive (President), Legislative (Congress) and Judiciary (Courts). The idea was that each would serve as a check against the power of the other two. And, among the many brilliant elements of the new Constitution was the principle that the church and state must remain separate so that individuals would always be free to practice, without interference from the government, whatever religion, or none, that they chose.

Over time amendments were judged necessary as the country grew and society recognized that further centralization of certain principles was essential to secure the freedom that the Framers, and the Americans who fought the Revolutionary and Civil Wars to create and preserve the union, sought to protect in perpetuity. For example, the requirements of ‘equal protection’ and ‘due process of law’ apply to both the federal government and the states.

It is now clear that the constitutional regime thus formed has several serious flaws, not least of which is the unplanned for development of political parties. The operation of the Electoral College has also proved to be quixotic at best.

It is also apparent that the widespread rhetorical framework under which Americans claim to a special place in the world is a myth. American “exceptionalism” viewed against the reality of lingering racism, fear of “foreigners,” and fear of the future leads to the inevitable awareness that Americans are no more exceptional than the people of other countries. The US history of intervention in other countries has not endeared the nations of the world to unqualified respect for the intentions of this country.

The threat of climate change and our newly realized vulnerability to disease should be sufficient to bind all peoples together in a common effort to protect the species by protecting the only planet we’re ever going to know. But that’s not what’s happening.

The United States has one of the strongest economies in the world. Our people overall enjoy a standard of living far above most of the rest of the planet. Yet fear of change, fear of the “other” and fear of displacement have led the people to elect a convicted felon as national leader. That same “leader” is plainly guilty of other crimes that will never be adjudicated, including his leading an insurrection against the government to overturn the 2020 election and his theft, and refusal to return, highly confidential government documents.

The Supreme Court, laced with conflicts of interest and outright corruption, has held that the President of the United States may not be held accountable for crimes committed in office if, for example, they are committed while conducting “official acts.” Thus, the Court held that the President may with complete immunity enlist the Department of Justice to join him in a criminal enterprise by simply “discussing” the matter with leaders within the Department.

Trump has made clear that he and his cronies intend not to lead the federal government but to dismantle it. His initial selection of incompetent and blatantly unqualified departmental and other senior leaders is conclusive proof that he has no intention of complying with the oath of office he will nominally take on January 20, 2025.

Trump is literally free, per Supreme Court decision, to ignore the law and proceed with his agenda. Little stands in his way, given the composition of the Congress and the abdication of responsible jurisprudence by the high court. What then?

Many large companies, like Meta and Apple, have surrendered by providing massive funds for Trump’s inauguration, ignoring the advice of Prof. Timothy Snyder not to comply in advance. Trump knows these economically influential entities and their leaders will not resist him. Jeff Bezos, the owner of the Washington Post, stopped the paper from endorsing Kamala Harris.

Perhaps even more remarkably, the Post’s Editorial Board has published a list of some Trump key appointments and indicated they should be confirmed. The list includes the likes of election-deniers Elise Stefanik and Pam Bondi (Trump’s second choice behind the disgraced and grossly unqualified Matt Gaetz. Also Kelly Loeffler, rejected by the voters of Georgia. The only ones who fail to pass the Post’s low bar are Robert Kennedy Jr., Tulsi Gabbard, Pete Hegseth, and Russell Vought.

Granted the Post spend little effort in explaining itself, but the criteria it chose to mention are, well, mind-blowing.

First, the Post says:

We would not have picked any of his choices for our hypothetical Cabinet. But, as we have argued for decades, that is not the standard we — or U.S. senators — should apply when evaluating potential executive nominees for Senate confirmation. The president-elect won the election. He deserves deference in building his team, and the Americans who elected him deserve an operational government, absent disqualifying deficiencies in competence, temperament or philosophy.

By that standard, all but two of Trump’s planned Cabinet nominees seem confirmable — as well as all but two of his picks for Cabinet-rank jobs that require confirmation.

But then the Post describes some of the nominees this way:

Marco Rubio for Secretary of State – “The son of immigrants, Rubio is respected by Senate colleagues and understands the vital importance of American leadership.”

My comment: this was news to me given Rubio’s post-2020 obeisance to Trump and the MAGA crowd. No sources are cited.

Scott Bessent for Secretary of Treasury — a “hedge fund billionaire, who seeks to stimulate growth and reduce the deficit, is among Trump’s most reasonable intended nominees.”

My comment: Again, no sources or authority cited. Maybe “billionaire” is sufficient for the Post’s purposes. It certainly is for Trump.

Pam Bondi for Attorney General – “Florida’s former attorney general is qualified; lawyers who have worked with her report that she is serious.”

My comment: Bondi is a 2020-election-denier and apparently has lobbied for foreign governments in the past. She’s serious alright. Bondi will be the perfect accomplice to Trump’s continuing efforts to use the Justice Department, with his Supreme Court’s approval, to commit further crimes without accountability.

Doug Burgum for Secretary of Interior – “The outgoing North Dakota governor and Stanford MBA built a successful software company that he sold to Microsoft.”

My comment: Being a software entrepreneur is not an obvious qualification for managing our natural resources. Prepare to lay your body down in front of a national park.

Howard Lutnick – Secretary of Commerce – “The co-chair of Trump’s transition team is a natural fit for a job traditionally held by a presidential friend.”

My Comment: A founding member of DOGE. Billionaire. His pinned Twitter/X account says: “Welcome to DOGE. We will rip the waste out of our $6.5 Trillion budget. Our goal: Balance the Budget of the USA. We must elect Donald Trump President. @elonmusk @realDonald Trump” The accompanying photo is of Lutnick & Elon Musk!

Balance the budget – riiight. Standard Republican rhetoric. Balance the budget and destroy the economy. A “natural fit.”

Lori Chavez-DeRemer – Secretary of Labor – “The former congresswoman from Oregon maintains surprisingly unorthodox views on organized labor.”

My comment: what “unorthodox views” means we are left to guess, and I’m guessing they are not good for unions.

Scott Turner – Secretary of Housing & Urban Development – “The former motivational speaker has never run a big organization, but that is not disqualifying.”

My comment: Lack of experience is self-evidently irrelevant in a Trump administration.

Sean P. Duffy – Secretary of Transportation – “The former reality TV star is also a former congressman from Wisconsin. He’ll still need to study.”

My comment: …..

Chris Wright – Secretary of Energy – “The Colorado oil and gas executive acknowledges that climate change is real.”

My comment: I suspect he also agrees the Earth is not flat. Prepare to lay your body down in front of a national park.

Linda McMahon – Secretary of Education – “The other co-chair of the president-elect’s transition team led the Small Business Administration during Trump’s first term.”

My comment: Betsy Devos redux? Her SBA experience definitely, certainly, obviously, assuredly qualifies her to lead American education policy, though her opportunities to do more damage to our education system may be brief if Trump fulfills his plan to eliminate the Department.

Douglas Collins – Secretary of Veterans Affairs – “He was a firebrand as a congressman from Georgia, but his heart seems to be in the right place in caring for veterans.”

My comment: You can’t make this stuff up. The most the Post has to say is that the nominee cares about veterans.

Kristi L. Noem – Secretary of Homeland Security – “Dog jokes aside, she has served in Congress and two terms as governor of South Dakota.”

My comment: The Post apparently thinks Noem’s shooting her dog was a joke! And, South Dakota being at the center of our national security concerns, Noem is imminently qualified for … something, though not the complex task of securing the homeland against attacks, especially with Trump in charge.

Interestingly, the Post did not mention Trump’s anointing of Kash Patel as inside man at the Department of Justice with instructions, redundant in his case, to get even or better with many of Trump’s main enemies list.

You get the picture, I’m sure. This is the “government” that Trump promised and that the American people chose, albeit by the slimmest of margins.

The United States is in the deepest trouble.

Corporate America is lining up to bend the knee to Trump. Under Donald Trump the United States seems destined to become a weak state and an international pariah as Trump in turn bends the knee to dictators like Vladimir Putin.

Thus far, the Democratic Party, reeling from the loss of the presidency and both houses of Congress, and with a Supreme Court having conferred immunity for the president’s crimes in office, has nothing much to say. Everyone, it seems, is waiting to see the actual shape of the catastrophe about to begin. It won’t be long now.

Nothing Has Changed – Don’t Be Misled by the Republican Political Theater

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Make no mistake Someone apparently tried to shoot Trump. I say ‘apparently’ because based on the evidence disclosed thus far, it is equally possible that the shooter intended only to frighten him or that the real target was the audience. While the shooter has much in common with the typical mass-murderer of school children (a youngish white male, a loner bullied in school), he was reportedly a registered Republican. His father also an avid Republican, Trump supporter and, of course, deep fan of guns – it was reportedly his gun that his son used.

In saying that, I do not subscribe to the conspiracy theories unsurprisingly circulating on social media that the entire event was staged in light of the imminent Republican National Convention, etc. One man, a father and firefighter, was killed in the incident and two other spectators were severely injured. An AR-15 bullet will do that, as we have learned to our deep sorrow from the many school shootings in which such weapons were used.

Not that Trump cared about anyone but himself. Reports indicate he has never reached out to the families of the man killed or of those wounded. President Biden did and was rebuffed by the widow who claimed her husband was so devoted to Trump that he would not have wanted her to accept the President’s condolences. That’s where we are.

Trump played golf, apparently not much unnerved by his alleged brush with death. Curious but given his past, not altogether surprising. To repeat, on the basis of known evidence so far, I do not subscribe to the claim that the entire affair was staged. The shooter was also killed. On the other hand, many mass shooters fully expect to die in the process.

I understand there are many unanswered questions. In time I expect there will be more clarity around why there has been no medical report on the nature and extent of the injury to Trump’s ear, and there are no authentic medical reports on the treatment he received. Why did Trump finally appear with a very large white bandage over the affected ear? There are reports indicating that he may not have been hit by a bullet at all but that his ear was damaged by a piece of the teleprompter that was shattered by a bullet. Strange but … not proof of the staging argument.

Also, there is no proof that this was in fact an “attempted assassination,” as the press has universally accepted without evidence of anything but an alleged nicked ear. There will be investigations and reports. Perhaps then there will be clarity about these and other questions begging for answers. Other than glorying in the additional attention he is receiving, and constantly craves, there is little if any real evidence that he came within an inch of being killed.

Meanwhile, everyone should calm down. A man is dead. The shooter is dead. Two people are hospitalized with undetailed but likely devastating wounds from the AR-15 bullets.

That said, the Republicans reacted true to form, blaming Democrats for “demonizing” Trump and thus inviting disaster. Naturally, those Republican sycophants ignored their consistent refusal to consider any meaningful restraints on ownership of automatic weapons. The NRA and their devotion to a strained interpretation of the Second Amendment were also ignored. Typical. One Republican claimed that President Biden had ordered the “hit” on Trump. Thoughts and prayers on that one. Republican Trump-worshippers remain among the worst, the most appalling Americans alive today.

Meanwhile, the Democrats were busy decrying violence in our political affairs and urging “unity.” Of course. Thoughts and prayers on that one too. The media also have been hysterical in their response to the incident, reporting as fact numerous matters about which they have no reliable evidence. It’s déjà vu all over again.

The reality is that Trump demonized himself. Here is a very brief sample of how he did that:

Trump’s immigration “policy” led to separating hundreds of children from their parents, in some cases apparently permanently, and locking them in cages. A perfect prescription for creating future terrorists who will never forget what was done to their families in the name of the United States of America. [See Who Will Punish Trump Administration Crimes Against Humanity?

Trump lied grotesquely and repeatedly about the COVID pandemic, promoting quack-sourced non-scientific remedies, repeatedly reassuring the country that the pandemic would end shortly with little impact. In fact, more than a million Americans died from COVID, and the damage continues. [See The Triumph of Hope Over Experience?]

Trump tried to use a foreign government to undermine his 2020 political opponent’s campaign, was impeached (twice) and acquitted only because his Republican sycophants in the Senate refused to hear the evidence and did not care what he did. Trump committed many other crimes in office. [See … A Man Unacquainted With Honor, Courage, And Character …. and Donald Trump — A Gangster in the White House]

When he left the White House, Trump took top secret documents with him and when this was discovered and the Archives demanded they be returned, he lied about them, refused to return them, hid them and engaged in other clear acts of obstruction of justice, adding to the ten that Robert Mueller’s investigation uncovered.

Trump has been found guilty by a criminal jury of fraud – 34 felonies. Not to mention the judicial determinations that he raped at least one woman.

There are dozens, likely hundreds of other examples, including many not revealed because Trump routinely destroyed documents that were supposed to be retained as official records of the Office of the President. But Trump never cared about that Office or his oath. His presidency was an occasion only to further enrich himself.

The mainstream media have apparently lost their minds entirely. The New York Times decided Joe Biden should drop out of the 2024 race solely due to his terrible debate performance, without mentioning anything about Trump. Meanwhile, the Supreme Court has conferred upon the President the absolute and unchallengeable power to commit crimes in office, even to the point of purloining the Department of Justice, among other agencies, to overthrow the presidential election of the very government the Court claimed it was protecting. In a bizarre twist of logic, the Court, claiming to prevent inter-presidential revenge-taking, gave the President the power to remain “king of America” for life and to appoint his successor. If the Biden administration doesn’t do something drastic about the Trump immunity decision, democracy in America will end with the next election if Trump wins. Imagine thereafter Trump’s son, Donald Junior, as President. It’s no joke.

The perfidy of the Supreme Court is not limited to the immunity question. Justice Thomas, bought and paid for by secret gifts from a billionaire Republican “friend,” wrote a concurring opinion on an issue not before the Court in the Trump immunity case. Thomas declared that the appointment of Special Prosecutor, Jack Smith, had been unconstitutional and therefore that the criminal cases against Trump at Smith’s behest could not stand. And, dutifully attendant to Trump’s needs as always, after endless delaying tactics but in practically no time after the filing of the then-inevitable motions to dismiss the stolen secret documents case, Trump’s judge-in-his-pocket, Aileen Cannon produced a 93-page opinion dismissing the document theft charges.

Now the New York Times apparently has awakened, at least partially, and produced in the last Sunday Times a special section entitled:  He Failed the Tests of Leadership and Betrayed America. Voters Must Reject Him in November: Donald Trump is Unfit to Lead.

So obviously true and yet, maybe too little too late. This was before the shooting. Trump has now selected one of the most despicable human beings in America to run with his as his Vice President: J.D. Vance. And while the Times on the same day recounts in detail the efforts of Republican functionaries around the country to suppress the votes of Democrats, it still plays the both-sides game in giving uncritical attention to the views of Trump’s most dedicated supporters in Congress and elsewhere.

The Supreme Court has unleashed the dogs of war by purporting to empower the President to violate the law with impunity. Joe Biden has many critical decisions to make if democracy is to be save from the very brink of destruction. The media also must choose now. There is no question left about the intention of the Republican Party to promote Donald Trump’s fascism until it has destroyed American democracy as it has existed since 1787.

I have read suggestions that Arabs and Muslims in Michigan, for one example, will not vote for Biden because of his support of Israel in the ongoing conflict with Hamas. I asked whether those single-issue voters have forgotten that Trump, immediately after taking office, imposed a ban on Muslims coming into the United States, labeling them all as potential terrorists. How many times must the lesson be learned that Donald Trump is no one’s friend, no one’s ally – he’s in politics for himself and his family alone. How many times?

The countdown clock is ticking to doomsday. Everything is on the line.

Sources: Who Will Punish Trump Administration Crimes Against Humanity? https://shiningseausa.com/2020/02/23/who-will-punish-trump-administration-crimes-against-humanity/

    The Triumph of Hope Over Experience?  https://shiningseausa.com/2022/02/26/triumph-hope-over-experience/

    … A Man Unacquainted With Honor, Courage, And Character …. https://shiningseausa.com/2024/02/06/man-unacquainted-with-honor-courage-and-character/

    Donald Trump — A Gangster in the White House https://shiningseausa.com/2022/04/11/donald-trump-a-gangster-in-the-white-house/

Another Day That Will Live In Infamy

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The day after the Japanese attacked Pearl Harbor, President Roosevelt addressed the nation and the world in a speech delivered to a joint session of Congress. The opening line was:

Yesterday, December 7th, 1941 — a date which will live in infamy — the United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan.

The attack was surely one of the lowest points in the country’s history. Thereafter, the country resumed its belief that it was immune from foreign attack, a belief shattered again on September 11, 2001. Our government took steps to assure the country and the world that such an event could never happen again. In many ways the upending of our way of life, driven by the response to that day, continues some 23 years later.

During the anti-communist hysteria of the post-World War II period, Americans were terrified that the “enemy within” would destroy our democracy. That fear spawned and nourished Senator Joe McCarthy’s campaign to find and remove the communists he believed had infiltrated American institutions. You know the story, I’m sure.

You also know that on January 6, 2021, the United States Capitol was attacked, not by foreign troops or foreign terrorists but by Americans inspired by the lies of then President Donald Trump. Trump was desperate to stay in power and was prepared to use any means at his disposal to accomplish his goal. Recall that Trump said many times, and believed,

I have an Article II, where I have to the right to do whatever I want as president … But I don’t even talk about that.

The proof that he believed that can be found, among many other places, in his conduct following the 2020 election. The indictment alleging his crimes related to staying in power says:

70. In late December 2020, [Trump] attempted to use the Justice Department to make knowingly false claims of election fraud to officials in the targeted states through a formal letter under the Acting Attorney General’s signature, thus giving [Trump’s] lies the backing of the federal government and attempting to improperly influence the targeted states to replace legitimate Biden electors with [Trump’s]….

74. That afternoon, [Trump] called the Acting Attorney General and Acting Deputy Attorney General and said, among other things, “People tell me [Co-Conspirator 4] is great. I should put him in.” [Trump] also raised multiple false claims of election fraud, which the Acting Attorney General and Acting Deputy Attorney General refuted. When the Acting Attorney General told the Defendant that the Justice Department could not and would not change the outcome of the election, [Trump] responded, “Just say that the election was corrupt and leave the rest to me and the Republican congressmen.”

75. On December 28, Co-Conspirator 4 sent a draft letter to the Acting Attorney General and Acting Deputy Attorney General, which he proposed they all sign. The draft was addressed to state officials in Georgia, and Co-Conspirator 4 proposed sending versions of the letter to elected officials in other targeted states. The proposed letter contained numerous knowingly false claims about the election and the Justice Department ….CoConspirator 4’s letter sought to advance [Trump’s] fraudulent elector plan by using the authority of the Justice Department to falsely present the fraudulent electors as a valid alternative to the legitimate electors.  The Justice Department urged that the state legislature convene a special legislative session to create the opportunity to, among other things, choose the fraudulent electors over the legitimate electors….

76. The Acting Deputy Attorney General promptly responded to Co-Conspirator 4 by email and told him that his proposed letter was false, writing, “Despite dramatic claims to the contrary, we have not seen the type of fraud that calls into question the reported (and certified) results of the election.” ….

77. On December 31, [Trump] summoned to the Oval Office the Acting Attorney General, Acting Deputy Attorney General, and other advisors. In the meeting, [Trump] again raised claims about election fraud that Justice Department officials already had told him were not true—and that the senior Justice Department officials reiterated were false—and suggested he might change the leadership in the Justice Department.

78. On January 2, 2021, just four days before Congress’s certification proceeding, CoConspirator 4 tried to coerce the Acting Attorney General and Acting Deputy Attorney General to sign and send Co-Conspirator 4’s draft letter, which contained false statements, to state officials. He told them that [Trump] was considering making Co-Conspirator 4 the new Acting Attorney General, but that Co-Conspirator 4 would decline [Trump’s] offer if the Acting Attorney General and Acting Deputy Attorney General would agree to send the proposed letter to the targeted states. The Justice Department officials refused.

79. The next morning, on January 3, despite having uncovered no additional evidence of election fraud, Co-Conspirator 4 sent to a Justice Department colleague an edited version of his draft letter to the states, which included a change from its previous claim that the Justice Department had “concerns” to a stronger false claim that “[a]s of today, there is evidence of … significant irregularities that may have impacted the outcome of the election in multiple States.”

80. Also on the morning of January 3, Co-Conspirator 4 met with [Trump] at the White House—again without having informed senior Justice Department officials—and accepted [Trump’s] offer that he become Acting Attorney General.

81. On the afternoon of January 3, Co-Conspirator 4 spoke with a Deputy White House Counsel. The previous month, the Deputy White House Counsel had informed [Trump] that “there is no world, there is no option in which you do not leave the White House [o]n January 20th.” Now, the same Deputy White House Counsel tried to dissuade Co-Conspirator 4 from assuming the role of Acting Attorney General. The Deputy White House Counsel reiterated to Co-Conspirator 4 that there had not been outcome-determinative fraud in the election and that if the Defendant remained in office nonetheless, there would be “riots in every major city in the United States.” Co-Conspirator 4 responded, “Well, [Deputy White House Counsel], that’s why there’s an Insurrection Act.”

82. Also that afternoon, Co-Conspirator 4 met with the Acting Attorney General and told him that [Trump] had decided to put Co-Conspirator 4 in charge of the Justice Department. The Acting Attorney General responded that he would not accept being fired by a subordinate and immediately scheduled a meeting with [Trump] for that evening….

84. [Trump] moved immediately from this national security briefing to the meeting that the Acting Attorney General had requested earlier that day, which included CoConspirator 4, the Acting Attorney General, the Acting Deputy Attorney General, the Justice Department’s Assistant Attorney General for the Office of Legal Counsel, the White House Counsel, a Deputy White House Counsel, and a Senior Advisor. At the meeting, [Trump] expressed frustration with the Acting Attorney General for failing to do anything to overturn the election results, and the group discussed Co-Conspirator 4’s plans to investigate purported election fraud and to send his proposed letter to state officials—a copy of which was provided to [Trump] during the meeting. [Trump] relented in his plan to replace the Acting Attorney General with Co-Conspirator 4 only when he was told that it would result in mass resignations at the Justice Department and of his own White House Counsel.

The foregoing detailed allegations, chapter-and-verse, showing Donald Trump’s attempt to use the Justice Department to support his knowingly false claims of election fraud were described by the Supreme Court this way:

In dividing official from unofficial conduct, courts may not inquire into the President’s motives….

The allegations in fact plainly implicate Trump’s “conclusive and preclusive” authority. “[I]nvestigation and prosecution of crimes is a quintessentially executive function….”

… the Executive Branch has “exclusive authority and absolute discretion” to decide which crimes to investigate and prosecute, including with respect to allegations of election crime….

The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to “take Care that the Laws be faithfully executed.” Art. II, §3. And the Attorney General, as head of the Justice Department, acts as the President’s “chief law enforcement officer” who “provides vital assistance to [him] in the performance of [his] constitutional duty to ‘preserve, protect, and defend the Constitution….’”

Trump’s threatened removal of the Acting Attorney General likewise implicates “conclusive and preclusive” Presidential authority. As we have explained, the President’s power to remove “executive officers of the United States whom he has appointed” may not be regulated by Congress or reviewed by the courts….

Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.

The Court thus saw no conflict or inconsistency in describing Trump’s attempts to force the Justice Department to support his knowingly false claims of election fraud as mere “discussions” implicating the DOJ’s authority to investigate “allegations of election crime” and the President’s duty to “take Care that the Laws be faithfully executed.”

The intellectual dishonesty underlying this treatment of the constitutional allocation of powers is blatant and undeniable. Pandora’s Box has now been opened. Ignoring the facts alleged in the indictment, the Court has adopted Trump’s view of Article II of the Constitution: the President can do whatever he wants. He is indeed above the law. Recall that in the end, the only thing stopping Trump’s plans to use DOJ to subvert the election was the threat of the DOJ leadership to resign if he persisted. If they had knuckled under to his unlawful demands, Trump might well have succeeded in overthrowing the election and restoring himself to power, thereby ending American democracy.

What the Court’s opinion did not acknowledge is that Joe Biden, not Donald Trump, is President of the United States. What is true of Trump as President is true of Biden as well. The Sword of Damocles has been unsheathed and it has two edges.

*****

It is not hyperbole to observe that July 1, 2024, will now rank alongside December 7, 1941, and January 6, 2021, as another day of infamy. July 1, 2024, was the day the American Constitution was destroyed by the United States Supreme Court.

The President of the United States is now free to use the Department of Justice to subvert American elections. But that’s not all. The Trump indictment addresses the Justice Department issues and concludes that absolute immunity attaches to attempts to use the Department to subvert elections

But remember, the President is the Commander in Chief of the Armed Forces of the United States, the largest and most powerful military force on the planet. The President is also the directive force behind all the federal agencies. He oversees the Cabinet — the people appointed by the President and who supervise those agencies.

What the Supreme Court has said about the power of the President over the Justice Department applies to the other federal departments and, indirectly, the agencies under them. If there are differences now between the U.S. President and a dictator, they are not apparent. If the President is absolutely immune from criminal responsibility for trying to or actually suborning the Justice Department to commit crimes, what prevents him from doing the same with the military?

The Court’s decision in Trump v. United States ranks alongside the Court’s worst opinions in history and may be the worst of all. Raising the President to imperial status is a graver threat to democracy than the decisions holding that “separate but equal” in education was adequate and that it was in the national interest and consistent with the Constitution to relocate into detention camps Japanese-Americans during World War II

Ben Franklin famously was asked, “”Well, Doctor, what have we got, a republic or a monarchy?” His response: “A republic, if you can keep it.”

 Turns out, we can’t.

Supreme Court Creates First American King

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The Supreme Court by a 6-3 vote has decided that the President of the United States enjoys absolute immunity for some criminal conduct, presumptive immunity for other criminal conduct and, for an indeterminate array of other criminal conduct, very difficult to identify, no immunity. However, the decision does not address the real question that was before the Court. Instead, it sends the case back to the lower courts for further consideration which will, of course, prevent the trial of any elements of the pending indictment before the November election and will likely lead to years of further litigation. If Trump wins the 2024 election, that litigation will undoubtedly include the question whether a President can pardon himself so that he can never be prosecuted for crimes committed while in office.

And, of course, if Trump loses and instigates another insurrection like January 6, 2021, designed to overturn the election result, there will be years more of litigation to address the extent of the crimes he would be committing as the Supreme Court continues to equivocate about basic constitutional principles. Meanwhile, Trump will have pardoned the loons who executed his direction to stop the certification of Biden’s win in 2020 by attacking the Capitol. The Court may well regret the perfidy of its craven decision to immunize the presidency from the consequences of blatantly criminal behavior.

I will leave to others the detailed parsing of the opinions in the case, with a few exceptions.

I would have thought, and did think, that the question before the Court was straightforward, especially following the oral argument in which Trump’s counsel claimed that the President could order the murder of a political opponent with complete immunity from prosecution.

This was, after all, a criminal prosecution that led to a very detailed indictment containing 130 numbered paragraphs recounting the events leading up to, through, and after January 6. The immunity issues needing elucidation were apparent from the indictment. There was no need for further lower court proceedings to determine what the central issues were. And absent motive to kick the can down the electoral road and prevent the trial of Donald Trump before the election, there is no apparent reason the Supreme Court could not have decided which acts alleged were immune, why they were immune and the result of that immunity for the prosecution of the indictment through trial.

The conduct alleged to have constituted crimes was described in extreme detail. If that conduct, as described, was immune from criminal prosecution, it is not apparent why the Supreme Court could not have decided and explained without having further time-consuming proceedings in the lower courts and the inevitable appeals back to the Supreme Court in, perhaps, 2026 or even 2027.

Perhaps the clearest example is the conclusion that the President’s “discussions” with the Department of Justice and threats to replace DOJ personnel for not complying with the President’s “discussion” (that was in fact not merely discussion but “demands” to engage in blatantly untrue and unlawful efforts to overturn the 2020 election) are unreachable by criminal prosecution. This must be understood in connection with the prior finding that in the realm of executive powers, the President’s motives may not be questioned. Thus, the Court concludes:

Trump’s threatened removal of the Acting Attorney General likewise implicates “conclusive and preclusive” Presidential authority. As we have explained, the President’s power to remove “executive officers of the United States whom he has appointed” may not be regulated by Congress or reviewed by the courts.

In short, according to the Supreme Court, a President may for entirely corrupt purposes, as was alleged here, threaten and remove personnel who refuse to comply with his directives to violate the law, without being accountable for his actions.

… the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the al­leged conduct involving his discussions with Justice De­partment officials.

Similarly, while purporting to need lower court input on some questions, the Court categorically rules out prosecution of Trump for trying to pressure Vice President Pence to violate his constitutional duties in connection with certification of the election result. The rationale for this astonishing outcome does not support it, but the Court is blind to the implications of its ruling:

It is thus important for the President to discuss official matters with the Vice President to ensure continuity within the Executive Branch and to advance the President’s agenda in Congress and beyond.

The Court is indifferent to the consideration that the President’s agenda might be, as it clearly was in this case, to undermine the electoral process, void the votes of millions of Americans, and install the defeated candidate as the winner of the election.

Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct.

The Court’s view is that Trump’s demands were “just talk.” After reciting a list of irrelevant matters in which the coordination of the President and Vice President are required, the Court simply writes off the allegation that the President, for entirely other and blatantly corrupt reasons, was pressuring the Vice President to violate the Constitution.

The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.

 In simple English, under the Court’s decision, the President is free to demand his Number Two federal officer to violate the Constitution without little concern for being held criminally responsible. The rationale for this bizarre outcome is that the “President may need to rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress.” Thus,

It is ultimately the Government’s burden to rebut the presumption of immunity. We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.

 It was and is plain on the face of the indictment that the charges related to Trump’s attempt to pressure the Vice President into violating what virtually every credible legal authority understands is the limit on the VP’s authority have nothing whatever to do with the President’s “agenda in Congress.” The corruption of the majority opinion in this respect is blatantly obvious as a partisan gift to Trump to create yet another obstacle to his being timely tried for a clear and obvious crime.

Regarding the allegations of Trump’s attempts to interfere with state electoral slates, the Court finds the issues just too complicated for it to address:

The necessary analysis is … fact specific, requiring assessment of numerous alleged interactions with a wide variety of state officials and private persons.

The Court remands those issues for further fact finding as well. Why these questions could not be resolved at trial through evidence, which is the normal practice, is not apparent. The indictment’s allegations are very specific and precise about what Trump attempted to do in Georgia, for example. There is no plausible basis for concluding that Trump’s demands that the Secretary of State for George “find” just enough votes to give him Georgia’s electoral votes were merely policy discussions. Trump could argue that in the trial, of course, as a “defense,” but to hold that more fact finding at the District Court level is essential to even holding a trial is beyond the pale.

If the trial court made material mistakes in admitting evidence and instructing the jury, those issues could be addressed through appeals in the normal course. The Court’s remand games the normal judicial process for Trump to aid his effort to prevent any trial before the election.

Finally, and perhaps most remarkably, the Court finds that the indictment’s charges related to Trump’s incitement speech on January 6 requires remand as well:

Whether the Tweets, that speech, and Trump’s other communications on January 6 involve official conduct may depend on the content and context of each…. We therefore remand to the District Court to determine in the first instance whether this alleged conduct is official or unofficial.

In these conclusions the Supreme Court pretends it knows nothing about, and ignores the specific allegations of the indictment, what Trump actually said on January 6., 2021.

The Court then indicates that evidence of the President’s knowledge of the falsity of his election fraud claims is not admissible at trial. It thus completes the gaming of its decision to protect the President from allegations of blatantly criminal conduct that has nothing whatever to do with the official duties of the President and belies entirely his obligation to “take Care that the Laws be faithfully executed.” The Court’s decision cannot be squared with the President’s responsibility to the Constitution and the law. It is a travesty of the most serious kind that the country will long regret. The Court has opened the door to a repeat of January 6, 2021 ignoring, among other things, that this time the government will be prepared for the attack.

More to come.

Supreme Court Sells Out to Trump in Insurrection Case

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Earlier today, the United States Supreme Court denied Trump’s request to stay the judgment of the DC Circuit that his claim of absolute immunity from criminal prosecution be stayed, while still taking review of the case through a procedural maneuver suggested as a fall-back by Special Counsel Jack Smith.

The Court’s schedule for briefing and argument of the case is ludicrous in light of what has gone before. The case has been briefed and argued to death in the lower courts, and thoroughly developed decisions rendered. There is no justification for a briefing and argument schedule taking the case to the week of April 22, 2024, almost two months further into the presidential election schedule.

Trump has until March 19, to file his brief, which will almost certainly be a mere reprise of arguments and citations already presented to and rejected by the DC District Court and the DC Circuit Court of Appeals. The Special Counsel is given three weeks (to respond, a period vastly longer that he is likely to require, given what has gone before, but a faster reply will not change the argument date. Oral argument will occur, if the schedule holds, a week after Trump’s reply brief.

Trump likely will find some excuse to whine about the schedule and seek to extend it.

The Court may then take weeks more, perhaps longer, to decide the case. The order is not signed and there is no indication that any justice dissented.

Unbelievable.

Justice Alito’s Masquerade

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A not-so-hypothetical state law of the near future:

“It is the policy and law of the state of [Gilead aka Any Republican-Controlled State] that the purpose of females in society is to serve the interests of males in all matters. Therefore, the legislature hereby declares:

    • The crime of rape in which a male forces a female, by violence, intimidation or otherwise, to engage in sexual intercourse is abolished;
    • Any female forced to engage in sexual intercourse as stated in section (1), must, if impregnated, take every measure to assure to the maximum extent medically possible that the child thus created be born alive, regardless of the circumstances of its conception or any medical issues involving its birth, survival, or future existence;
    • Any female who fails to comply with section (2) hereof shall be guilty of the felony of murder in the first degree and shall be punished by death.
    • Any female convicted under section (3) hereof shall submit to such medical tests as are necessary to determine paternity and shall forfeit all her property rights to the male who impregnated her.”

Seems insane, I know, but given the theocratic posturing of Republicans and their insistence on a society in which women’s rights are subordinated to those of men, it is not beyond imagining that the removal of constitutional protections for abortions will lead to state statutes similar in substance to the one set out above. In fact, multiple Republican-controlled states have already enacted severe restrictions on abortions with no exceptions for rape and incest.

In a recent post I raised some serious ethical concerns about the relationship between Supreme Court Justice Clarence Thomas and his wife’s involvement in efforts to overturn the 2020 election. I mentioned some issues related to Justice Alito’s November 12, 2020, speech before the Federalist Society, the far-right organization whose vetting and approval is essential for appointment of judges that Republicans in the Senate support. A rough transcript of the Alito speech can be seen at https://otter.ai/u/ezh-387rQb7p7Yq87udbMb4Eovk if you have the stomach for it.

In light of Alito’s remarks, just over a year ago, it was no surprise that he had authored the majority Supreme Court opinion that was leaked to and reported by Politico. https://politi.co/3s96yA6

Alito opened his Federalist Society speech with an homage to the role of the Society as a bastion of free speech, open dialogue with, he claimed, no political or other agenda, ignoring, among other things, the role it plays in vetting conservative candidates for judgeships, including on the Supreme Court. Keeping with his theme of what he was not speaking about, Alito noted the “previously unimaginable restrictions on individual liberty” that arose during the pandemic but insisted,

I am not saying or even implying, I am not diminishing the severity of the viruses threat to public health. And putting aside what I will say shortly about a few Supreme Court cases, I’m not saying anything about the legality of COVID restrictions. Nor am I saying anything about whether any of these restrictions represent good public policy. I’m a judge, not a policymaker.

Then,

All that i’m saying is this. And I think it is an indisputable statement of fact, we have never before seen restrictions as severe, extensive and prolonged as those experienced, for most of 2020. Think of all the live events that would otherwise be protected by the right to freedom of speech, live speeches, conferences, lectures, meetings, think of worship services, churches closed on Easter Sunday, synagogues closed for Passover on Yom Kippur War. Think about access to the courts, or the constitutional right to a speedy trial. trials in federal courts have virtually disappeared in many places who could have imagined that

Alito continued –

the COVID crisis … has highlighted disturbing trends that were already present before the virus struck. One of these is the dominance of lawmaking by executive Fiat rather than legislation. The vision of early 20th century progressives and the new dealers of the 1930s was the policymaking would shift from narrow minded elected legislators, to an elite group of appointed experts in a word, the policymaking would become more scientific. That dream has been realized to a large extent. Every year administrative agencies acting under broad delegations of authority churn out huge volumes of regulations that dwarfs the statutes enacted by the people’s elected representatives. And what have we seen in the pandemic sweeping restrictions imposed for the most part, under statutes that confer enormous executive discretion?

We had a covid related case from Nevada. So I will take the Nevada law as an example. Under that law, if the governor finds that there is, quote, a natural technological or manmade emergency, or disaster of major proportions, the governor can perform and exercise such functions, powers and duties as are necessary to promote and secure the safety and protection of the civilian population. To say that this provision confers broad discretion would be an understatement.

Now, again, let me be clear, I’m not disputing that broad wording may be appropriate in statutes designed to address a wide range of emergencies, the nature of which may be hard to anticipate, and I’m not passing judgment on this particular issue. statute,

I want to make two different points. First, what we see in this statute, and what was done under it is a particularly developed example of where the law in general has been going for some time, in the direction of government by executive officials, who were thought to implement policies based on expertise. And in the purest form, scientific expertise.

Second, laws giving an official so much discretion can of course, be abused. And whatever one may think about the COVID restrictions, we surely don’t want them to become a recurring feature after the pandemic has passed. All sorts of things can be called an emergency or disaster of major proportions. Simply slapping on that label cannot provide the ground for abrogating our most fundamental rights. And whenever fundamental rights are restricted, the Supreme Court and other courts cannot close their eyes.

When I read that, my first reaction was that a politician like Ted Cruz was speaking, making a classic right-wing anti-deep state conspiracy claim. The speech reads like a game of “which cup is the pea under,” with Alito repeatedly disclaiming the intention to make the very points he was making.

Alito next attacked the leading precedent for the constitutionality of public health measures, Jacobson v Massachusetts, 197 U.S. 11, decided in 1905. He started with a judge joke that would appeal to the ultra-conservative audience:

The case concerned an outbreak of smallpox in Cambridge, and the Court upheld the constitutionality of an ordinance that required vaccinations to prevent the disease from spreading. Now I’m all in favor of preventing dangerous things from issuing out of Cambridge and infecting the rest of the country and the world. It would be good if what originates in Cambridge stayed in Cambridge.

Almost as if signaling the lawyers waiting to challenge the national health policy regarding COVID, Justice Alito offered up multiple grounds for limiting and distinguishing Jacobson in the future and segued into a discussion of “religious liberty” with the observation that,

It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right. And that marks a surprising turn of events.

Noting that a Supreme Court decision in 1990 (Employment Division v. Smith, 494 U.S. 872) had “cut back sharply on the protection provided by the Free Exercise Clause of the First Amendment,” Alito noted that Congress promptly passed, and President Clinton signed, the Religious Freedom Restoration Act with nearly unanimous support.  But, according to Alito,

today that widespread support has vanished. When states have considered or gone ahead and adopted their own versions … [t]hey have been threatened with punishing economic boycotts.

Some of our cases illustrate this same trend.

Note that the majority opinion in Employment Division was authored by none other than Antonin Scalia, the leading icon of the conservative judiciary and originalist thinking on the Supreme Court (the Constitution must be interpreted according to its “public meaning” in the late 18th century). Scalia wrote:

We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition….

Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now.

This precedent, apparently, was a bridge too far for Alito who appears to believe that the assertion of any religious grounds for conduct exempts that conduct from state regulation. The mind boggles.

His speech then launched into a protracted series of complaints about the Supreme Court’s treatment of religiously motivated “good works,” even if, and perhaps especially if, they lead to discriminatory treatment of people outside the penumbra of a particular religious belief. Such belief, Alito appears to believe, despite all the denials, is by itself a sufficient basis to permit denial of services to others not committed to the same ideas.

For many today, religious liberty is not a cherished freedom. It’s often just an excuse for bigotry, and it can’t be tolerated, even when there is no evidence that anybody has been harmed….

The question we face is whether our society will be inclusive enough to tolerate people with unpopular religious beliefs.

Alito likened the trend he perceived to the treatment of Germany and Japan after 1945: “It’s not dark yet, but it’s getting there.”

Alito reviewed with disdain the Supreme Court’s treatment of the COVID pandemic, arguing that deferring to state governors on public health grounds led, in Nevada, to opening the casinos and,

“So if you go to Nevada, you can gamble, drink and attend all sorts of shows…. But here’s what you can’t do. If you want to worship and you’re the 51st person in line, sorry, you are out of luck. houses of worship are limited to 50 attendees.”

And on and on.

Since I am now at risk of writing a critique as long as the original speech (almost 5,000 words), I will cut this short. Suffice to say that the tone of Alito’s remarks was consistent with the tenor of the draft opinion released by Politico. And while Alito initially focused on religious freedom, he also complained that “Support for freedom of speech is also in danger.” His main reference there was to “things you can’t say if you’re a student or professor at a college or university or an employee of many big corporations.”

He also specifically complained that the Supreme Court’s decision on same-sex marriage had led to claims of bigotry against people who continued to assert that marriage was the union between, and only between, one man and one woman. Repeating “old beliefs” in public was predicted to lead to accusations of bigotry, just as Alito and other dissenters had expected.

Alito was clearly playing to the prejudices and fears of the arch-conservatives in the Federalist Society. He complained about attempts of individual senators to influence the Court’s decision-making, labeling a brief a group of them filed as an attempt to influence it by means other than legal argument and referencing another country where tanks were brought to bear against a high court in another country.

Following a likely-obligatory shout out to Scalia again, Alito ended his tirade with this signal [corrected for obvious transcription issues]:

… in the end, there is only so much that the judiciary can do to preserve our Constitution, and the Liberty it was adopted to protect. As Learned Hand famously wrote, Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can do much to help it. For all Americans, standing up for our constitution and our freedom is work that lies ahead. It will not be easy work.

Taken as a whole, this, speech resembles the work of politics, not law.  It is an ultra-conservative judge speaking to an ultra-conservative political body and, in words more elegant than those typically used by Donald Trump, warning them that their religious liberty and other “rights” are at risk from liberals bent on helping “others” and placing their needs ahead of those of “true Americans.” It appears now that with Alito’s draft opinion in circulation, the ultra-right is on their chosen path to having the state control the lives of females who comprise about half of all Americans. Welcome to Gilead.

I will have more to say about the irreconcilable paradox of Republican conservative politics in the next post. For now, it is sufficient to observe that the idea of lifetime appointments has been fatally undermined. No country, certainly not this one, can withstand the theocratic authoritarianism that has infected the Supreme Court under the phony guise of “religious liberty.”