Trump v. United States - what an appropriate case name!

The US Supreme Court has just abrogated the Constitution of the United States, at the request of disgraced felon Donald Trump.

 If America can ever restore the principles of the Constitution, including the central principle that no one is above the law and the co-equality of the three branches of government, among many others, Trump v. United States will come to be viewed as the single worst decision ever rendered by this disgraceful Court. At last, Plessy v. Ferguson and the Dred Scott decision, not to omit the legally fanciful abuse of Bush v. Gore, will no longer occupy the bottom rung of American jurisprudence.

Wake up, America! The coup d'etat that started long ago is almost finished, almost without firing a shot. While its most visible manifestation was January 6, Trump's criminal attempt to overturn the clear result of the 2020 election, with the connivance of nearly all of the Republican Party, is part of their decades-long effort to put fascist reichwing rule beyond the remedy of democracy.

They're almost finished. Can we stop them? Don't count on it.

In the Trump Tank

The Supreme Court won't actually rule that the President is immune from prosecution. Think what Joe Biden could then do!

But they're all lawyers, so they understand that Trump's defense is completely factually and legally bankrupt. We've all seen and heard the proof, and it's unassailable. He attempted insurrection and the nullification of a legitimate election to retain power, he kept and refused to return national security documents and Presidential records that were in no sense personal documents, he exposed at least some of them to uncleared civilians and foreigners, he falsified business records (as he surely has his entire career), and he sexually assaulted Jean Carroll (not to mention many others, most likely).

The Republican Supremes know that Trump's defense is to run out the clock. Rich people use this defense to wear down prosecution all the time, and that's a fundamental problem for our legal system. It's why, for example, hardly any big corporation admits guilt in a settlement, and why the SEC among many other regulatory agencies almost always settles out of court instead of going to trial. It's also why no one significant ever did time for the manifest criminal financial behavior that led to the Great Recession in the aftermath of the subprime (and other) mortgage crisis.

Aileen Cannon, for all her reputation as being out of her depth in the documents case, cottoned onto Trump's interest and jumped enthusiastically into the tank long before the Republican Supremes. Delay? She's all over that!

What's my evidence?

If resolving a case helps Trump, the Supremes get right on it. They were never going to allow Colorado and other states to exclude Trump from the ballot, and they made that ruling tout suite. So, despite its plain history in the aftermath of the Civil War, they declared Section 3 of the Fourteenth Amendment not to be self-enforcing. Done and dusted.

On Presidential immunity though, they declined Jack Smith's filing for immediate certiorari. Hey, that gave them time to think up a path through the law that helps Trump. And, guess what, it's more delay!

Of course, Trump's interlocutory appeal for immunity will go nowhere in the law. It's a ridiculous, frivolous claim. The Supremes could have said so in their order declining cert, but that wouldn't help Trump delay and deny justice. Also, Trump's lawyers cannily filed an immunity motion in Cannon's courtroom, which means that eventually there will likely be competing rulings in different Federal Circuits, and only the Supreme Court can resolve those.

And, of course, it's not evidence about the Supreme Court, but it's evidence of the tactics of the Trump legal team: the Fani Willis/Nathan Wade affair. It has no real bearing on the case, but, Fani WTF?! It's a Bill Clinton level inability to stay focused. Eyes on the prize! Someone needs to get to trial before the fall, and you were our best hope. Instead, you couldn't keep your hands off someone who worked for you!

What we need: faster appeals courts, a limit to the number of issues a defendant can raise as interlocutories, and many fewer privileges for the powerful. I'm not holding my breath.

You call that an insurrection?!

Now the Supremes will rule that Trump can't be excluded from the 2024 Presidential ballot. This has been coming for some time. As I've said before, a Court that's more politically reichwing than even the Court that made an indefensible and extremely poorly reasoned decision to help its political allies in 2000's Bush v. Gore is never going to put Trump into a timeout.

I can only hope the Supremes set a standard for what actually would constitute insurrection that would trigger Section 3 of the 14th Amendment. They probably won't. They'll probably punt to Congress, which will render Section 3 toothless. The reichwing will love this, since they'll know that they can try their christofascist white supremacist mob rule again.

Republican Supremes will do what Republican Senators failed to do, today's fantasy

When, on January 6, 2021, a stalwart band of Capitol Police punched way above its weight and delayed just long enough Donald Trump's mob of insurrectionists, Trump tried and failed to join their attempt to steal the election rightfully won by Joe Biden. After his failure, Trump sulked in the White House, knowing that he'd put roadblocks in the way of any police reinforcements other than the District Police. I know of no other way to interpret his determined inaction than as intentional delay to give his coup d'etat the chance to keep him in power illegally, undemocratically, and treasonously.

Even prominent Republicans saw the whole putsch this way in real time, before their venality and fear of Trump kicked in and they started rationalizing. Liz Cheney (R-reality) said to Jim Jordan (R-oh-oh-oh), one of Trump's fifth column on the Hill, "You f***ing did this."

Then-Speaker Nancy Pelosi (D-CA) definitely saw all of this. She moved Democrats quickly to impeach Trump for the most impeachable acts ever indicted by the House.

Would the Senate have followed the conviction they failed to do with disqualification of Trump to ever hold office again? It's moot, of course, but presumably that would have been the sole practical reason to convict Trump.

There's no doubt whatsoever that the Senate would have had the power to disqualify Trump. The final paragraph of Article I, Section 3 of the Constitution is:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

This would have rid the Republican Party, not of fascism per se, nor their base's impulse toward fascism, but of this troublesome high priest in the church of only himself.

Ah, but there were the 50 members of Republican caucus of the newly (and barely) Democratic Senate to get through, and the House Democrats' case needed two thirds of all Senators, which would have to include at least seventeen Republicans. Only seven brave Republican Senators voted to impeach Trump.

Perhaps other Republican Senators thought that Trump's loss in the 2020 election and his abject failure to steal it back from us voters would rid them of his kind of trouble. But, no, Trump has always doubled down, and he did again.

Now, the Colorado Supreme Court has disqualified Trump from the ballot, and the U.S. Supreme Court must rule whether the 14th Amendment indeed applies to Trump and disqualifies him from the 2024 ballot. The language of Section 3 is strong:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

No officer of the United States or of any state remains eligible to serve in an office that requires the same oath he's already violated once. We know your oath is worth nothing, so we don't want to hear it!

Why didn't the Reconstruction Era Radical Republicans specifically name the President and Vice President as officers of the United States. They didn't have to! Article II of the Constitution starts:

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows[...]

But the Republican Supreme Court is going to abuse this language to reach the outcome it wants, just as it abused the language in Section 1 of the 14th Amendment to rule for Bush under the ridiculous rationale that equal protection of law ("... nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws") required that some ballots in Florida in 2000 should NOT be recounted.

So, that's my prediction: the Supreme Court will gut Section 3 without looking back, and Trump will be on the ballot, even in Colorado. Because the Supreme Court is the third political branch of our government when the chips are down, and it has to rule on political power.

Who cares?

Obligatory media criticism:  When was the last time you heard a reporter challenge a Republican with something that a loony leftist said?

(h/t Jezebel)

That's no double standard

Obamacare wasn't a tax a couple of days ago, but now it's a tax.

Fortunately, Mitt Rmoney realized that Obamacare could be a tax at the same time Romneycare isn't because the Supreme Court has only ruled that Obamacare is a tax.

“The Supreme Court is the highest court in the nation, and it said that it’s a tax, so it’s a tax,” Mr. Romney told CBS News. “They have spoken. There’s no way around that.”

Since it hasn't ruled on Romneycare, Rmoney can call it anything he wants. Win!

You think I'm kidding.

Furthermore, Rmoney has enough super PAC money to overrule the appearance that he signed universal healthcare (now anathema to Teapublicans) that included an individual mandate (socialistical attack on the freedom to die free from a strong case of freedom) and is paid for in part by a penalty just exactly like Obamacare's so-called tax (SSSSH!  Look over there!).

Why Republicans want to end academe

They don't control it:

The U.S. Supreme Court should uphold a law requiring most Americans to have health insurance if the justices follow legal precedent, according to 19 of 21 constitutional law professors who ventured an opinion on the most-anticipated ruling in years.

For now, anyway...

Opus Dei of America

It looks as though Rick Santorum (R-pre-Vatican-II) may luck out in Iowa. He was so far below the radar no one thought to gin up massive attacks of killer ads against him.

His particular conservative Catholic nullification - to go with Ron Paul's opposition to basically all civil rights legislation - is to deny Griswold v. Connecticut, which established our right to keep the state from interfering in our sex lives. You don't want Santorum in your bedroom? Don't have sex of any kind unless you're willing to play procreation roulette.

No sex, lies, and video (digital)

My daughter came home from work yesterday evening and, to accompany Thai food, she wanted to watch "Easy A". Oh, well, I've been the only owner of a Y chromosome in a movie theater. Twice. "Thirteen Going on Thirty" and "The Princess Diaries". One good, one bad, so...



"Easy A" is hysterical. Maybe I laughed too loud. At least I was only embarrassing at home.

It occurred to me about halfway through that our modern media culture is a perfect match for North Ojai High School, all gossip, rumor, and sensation, perception is reality, who cares what's true, image rules.

Typically, Hollywood slaps a happy ending on the triumph of bullshit. Olive's webcast, guerrilla marketing and all, we're supposed to believe, is good enough to shovel it out of her young life. It's a comedy, after all. And Facebook won't follow you all the days of your life.

I suppose I should take some joy from this movie metaphor. If I really can stretch it, it means that media is not channelling middle school pubescent angst and might be mature enough for high school adolescent angst. But I'm not feeling the joy.

Emma Stone's Olive wasn't having sex. We, on the other hand, are fucked. The Supreme Court's wingnut majority continues to hand wealthy people and corporations bigger and bigger megaphones, as if they needed them, to drown out the free speech of everyone who can't go toe-to-toe with whichever billionaire bogeyman is currently most prominent in financing the conservative con-game whose basic message is that we'd all be happier as peons in thrall to their every whim. Because they're so rich, they must be the greatest people who ever lived.

But I didn't let these dark thoughts spoil my viewing pleasure. I've been repressing reality a lot lately.

Public trust

Clarence Thomas evaded filing requirements about his family's income sources.  The filings provide transparency in government to us citizens.  Abe Fortas had outside income too - but prior to the disclosure law, enacted in 1978 - and he was hounded from the Supreme Court even though he recused himself from related cases. 

Who hounded him?  Conservatives who didn't like his liberalism on the Bill of Rights and indigent defendants.

I don't hear them now.

Where Tom DeLay is going

The likelihood of convicted felon Tom DeLay ever spending even one night in the big house is, I fear, low. It's not that I don't fervently wish for him to lose his undeserved freedom and multi-thousand-dollar suits in favor of an orange coverall with "PRISONER" stencilled across both front and back.

DeLay is one of those comic book villains I'd most like to see imprisoned. He's a political good fella who mistakes his self-righteousness for actual righteousness.

DeLay will appeal. He claims to have spent $8 million on his defense, but you can be sure that not a cent of it came out of his own pocket. He will take his case to the U.S. Supreme Court if necessary. And the conservative majority is primed to declare Texas's century-old prohibition on corporate contributions unconstitutional. After all, corporations are people too! What about their feelings!

At that point, the money laundering conviction is moot, and mooting it makes the conspiracy conviction moot, too.

On the steps of the Supreme Court, in front of the door that's no longer open to the public, DeLay will smugly announce his exoneration. He'll forever attack his prosecution as a political persecution, and the media will dutifully print his bullshit.

So, in anticipation of disappointment, let's review what DeLay did that brought upon him the force of the legal system:

• After the 2000 federal census, Texas redistricted its Congressional seats in a way that didn't provide for as many Republican-friendly seats as DeLay wanted.
• DeLay planned to take over the Texas lege (homage to Molly Ivins!) and re-redistrict purely for partisan Republican advantage - even though this had never been done before.
• To do this, he raised $190,000 dollars from corporate sources.
• But he had a problem: Texas law forbade spending this money on legislative races.
• No problemo! Wash the money through the RNC.
• He also had to overcome Texas Democrats' procedural attempts to prevent another bite at the redistricting apple.
• To do this, DeLay involved federal national security agencies to track down the Democrats.
  
• GOP win! A six-vote swing to the Republicans in Congress...
  

Tom DeLay was certain that the law did not apply to him. He still is. He never will accept the rules that constrain the rest of us. Those are for the little people.

Citizens disunited

When the Supremes ruled that the FEC could not violate the free speech rights of desperately needy and self-expressive corporations (we just gotta be it!), many of us who are actual flesh and blood citizens and not mere legal fictions written on paper were sure that the 2010 mid-term election would be flooded with a river of dirty money, almost entirely from the corporatist right. I would rather have been wrong.

Defenders of the Citizens United decision took two tacks. Many argued that of course corporations should have First Amendment rights. After all, the New York Times has First Amendment rights, and it's a corporation. (And, frankly, that's a fairly persuasive argument.)

Other defenders of Citizens claimed it wouldn't make a difference anyway. How does the crow you're eating taste?

The Court has neutered all campaign finance reform. But don't legal limits still apply to candidates and parties? They're acting like it, but no. There's no hindrance to them incorporating and claiming the protection of Citizens United v. FEC. In fact, many of them are already incorporated. Republicans are holding back because they have so many well-heeled allies. Democrats are holding back - why is that?

President Barack Obama has tried to score political points against the anonymity of corporate contributions to the Chamber of Commerce's right-wing slush fund. We know that the Chamber takes foreign contributions in other areas. How do we know that none of that finance assists or is included in its political activities?

The answer: We don't.

A better issue, though, would be that the banking sector is undoubtedly contributing. We bailed them out, allowed them to return to major profits, and they're making common cause with the very people who insanely think that nothing should have been done to allay the credit crunch. They have theirs; now they want everything in the world you could possibly imagine.

Word to Obama: Tell the country that the bankers are trying to consolidate their ownership of the government and that you'll stop it. Of course, you'd need to fire Tim Geithner to look serious about that.

Starboard ho

No surprise, Republican Senators are lining up against Elena Kagan.

President Obama nominated Kagan, clearly a moderate, to replace the most liberal member of the Supreme Court, but there's no satisfying the Republicans. They're so devoid of perspective, they think the responsible left is Joe Lieberman - or even Olympia Snowe.

This is what Republicans do: No matter how conciliatory or centrist a Democratic proposal, they push it hard to the right. And then they won't support the result.

It's time to stop negotiating with these bad faith assholes, kill the filibuster in January (or sooner), and make the majority's platform happen.

Media dystopia

Big media dysfunction in microcosm...

Dwelling on inconsequentialities such as the little witticisms of a confirmation hearing is no accident. It's how the media avoids taxing its middle-schoolish audience with philosophical conversations about the substance of liberty under law. (Snooze!)

Once CNN is on an inconsequentiality, however, they bring to bear the serious principles of balanced journalism. Lest anyone carp from among the perennial right-wing whiners, CNN offers equal emphasis:

If confirmed, Elena Kagan may or may not turn out to be that intellectual counterweight to conservatives Justice Antonin Scalia or Chief Justice John Roberts.

Except of course that the supposed intellectual depth of conservative ideologues is axiomatic!

CNN can't even omit balance on the mere possession of a sense of humor - can't leave the wingnuts thinking the reporter thinks that being funny is a liberal trait.

To be fair, the members of the court usually labeled liberal - Justices Ruth Bader Ginsburg and Sonia Sotomayor, and the retired John Paul Stevens - all display great legal minds but not much sharp-edged humor or the willingness to engage in spirited debate for which Kagan is known. Justice Stephen Breyer is equally smart and he too shares a sense of humor, but that tends to fall on the quirky, self-deprecating side.

On the conservative side, friends of Justice Clarence Thomas - who almost never speaks at arguments - note he has a great wit and a hearty laugh. Colleagues call him the funniest justice you never hear about.

If Robin Williams, referring to the Nazis, asked a German, "Did you ever think maybe you killed all the funny people?", CNN would be obliged to find, yah, haha, a stormtrooper who side-lined in stand-up. You vill laff, and you vill like it!

Meanwhile, they know they have to make excuses for the other empty seat on the Supreme Court, Clarence Thomas. His tiny contributions bear out the claims of those who opposed his confirmation. He's a reliable right-wing vote, never mind how great his anonymous friends claim he might be. Is that funny-ha-ha or funny-strange? Maybe funny-uh-oh...

When finally, Bob Mears of CNN makes a brief digression into substance, it's to report about a question from Charles Grassley (R-grasping at cornstalks):

Grassley had asked the nominee about a paper she wrote as a college student that took a critical look at how judges decide cases.

"Is it appropriate for judges to mold and steer the law?" Grassley asked.

Questions about an undergraduate term paper! Can high school be far behind? How about kindergarten? "Ms. Kagan, I am reliably informed that at age five you called a prominent conservative classmate a poopy-head. When did you stop being a red-diaper baby?"

Of course, no CNN reporter will ever observe that some of Kagan's friends say that it's total bullshit to datamine 30-year-old papers written by a 20-year-old for reasons to vote against confirmation of a judge. That would be unbalanced!

Our big media, even more full of shit than the people they cover.

Privatizing justice

Looks just like Widener to me..

Click image for full Jack Ohman/Oregonian cartoon. Or here in color.

Dog bites woman

Is it really "trending" news that Sen. Jame Inhofe (R-wingnuttiest) opposes Elena Kagan for the Supreme Court? Ho hum.

If he stopped mid-tantrum, admitted that he was tired of advocating for a return to the dark ages, ripped the mike off his lapel, and walked away from the cameras, now that would be news I could use!

Give two-year-olds the vote

They couldn't throw any more tantrums than the Republican Party:

"Even if it's a nominee that we can't seriously stop, we can accomplish several things, and so a hard fight is worthwhile," [Curt Levey, director of the conservative Committee for Justice,] implored. "Certainly it can be to the political advantage of Republicans.... There's everything to be gained from making the Supreme Court vacancy a campaign issue in 2010."

"There's broader goals such as just distracting Obama from other items on his agenda," Levey added. "The tougher the fight the less capital and time and resources and floor time in the Senate there is to spend on immigration and climate change, etc."

Elections have consequences - where have I heard that?

(h/t mcjoan at Kos)

The front door is closed

This week, the Supreme Court closed its front door. Over the door is engraved in Vermont marble one of the fundamental aspirations of America, EQUAL JUSTICE UNDER LAW.

The court took this step because it fears terror. Never mind the symbolism.

This week, evidence led to the arrest of a Pakistani, naturalized to be an American citizen, for what was, by all appearances, his plot to blow up Times Square. Front door, back door, side door, it didn't matter to him.

But he understood how attacking a symbol instills fear, the strategic purpose of the tactic of terror attacks.

Republicans, true to form, think that this alleged citizen terrorist, arrested for a crime on American soil, should not have been read his Miranda rights, as our law demands. Instead, they want to exploit the fear of Americans to score the cheapest political points. Never mind that the feds used a public safety exception to Miranda initially to interrogate the suspect.

Republicans in Washington - and a substantial proportion of their voters - do not believe in law. They believe in summary vigilantism. They are dismayed that the defendant has apparently confessed and is cooperating. They were eager to flay the Obama administration for not torturing this man, but now they're all dressed up in leather like a sadist with nowhere to go but home to the missus.

The Republicans are happy to risk the validity of the suspect's confession, happy to let him off the hook under our law. That would give them more political wedge issues to divide the country. Perfect!

It's scary that one of the major political parties in the United States couldn't give the slightest crap about the legal foundation of our country. They are in fact not the literal definition of conservatives. They are radicals. Their promise is coup d'etat in slow motion.

And yet they're not a marginal splinter group. They're the second largest political grouping in America.

Waking up

The good news is that even a reflexively centrist conciliator such as President Barack Obama has limits to the bullshit he'll tolerate from the ignoramus caucus of the Party of No:

"It doesn't matter who he chooses, there is going to be a big 'ol fight over it. So he doesn't have to get sidetracked by those sorts of concerns," the official told me. The GOP has attempted to obstruct "anything of consequence" put forth by the Obama administration since he took office, the official said. "The president is making this decision with a pretty clear view that whoever he chooses is going to provoke a strong reaction on the right," the official added.

My recommendation:

• On John Paul Stevens's replacement, fight visibly and without bending with the Senate Republicans, win or lose.
• If they succeed at their filibuster, no need to go nuclear. Make a recess appointment at the first opportunity.
• On January 3, 2011, get whoever is the Senate Majority Leader to kill the filibuster, not to mention the unconscionable system of secret holds. Through overuse, they've outlived their function of caution and become the obstructive tool of a bunch of two-year-olds throwing tantrums.
  
• Gain Senate confirmation of your recess appointee with fifty-whatever votes you have.
• Call Mitch McConnell and sweetly tell him to go fuck himself. With a chainsaw.
  

Conservative bias

Should President Obama nominate a liberal to succeed John Paul Stevens on the Supreme Court?

Why is there even a question that the answer is yes? The only question for a Republican President is whether he should nominate a strong conservative or an extreme conservative. He may screw up the choice - Souter - but a Republican's intent is always to get another ideologue onto the court, and preferably a youngish one.

For some obscure reason - couldn't be the self-forgiven hypocrisy of an overweening will to power - the Republican caucus in the Senate never holds itself to its own stated principle of an up-or-down vote if a liberal is shackled in the dock, I mean, giving testimony.

Instead, they shout, "Bork, bork, bork," like a bunch of capons with too much gravel in their gizzards. They claim that the borking of Robert Bork was the original sin of politicizing the court, never mind the Bork's subsequent role as a culture warrior on the extreme right has proven the Democrats were correct to bork him.

Last, take a look at the people CNN asked to comment on the question of a liberal on the court (oh, my, Mildred, such a scary prospect):

• Ed Rollins, a well-known Republican operative
• Douglas Kmiec, a Reagan appointee to the Justice Department (who by the way uses his paragraphs to nominate a friend of Samuel Alito's, someone who defended Alito's dishonest question-dodging to hide his extremism during his confirmation)
  
• Ilya Shapiro, from the libertarian but mostly conservative Cato Institute
• Ed Whelan, former law clerk to Antonin Scalia, the most open extreme conservative on the court

That leaves two slots that could have been filled with someone willing to answer yes. Instead, we get two prominent but not public figures who speak in platitudes and analyze the politics:

• Patricia Millett, who practices before the court and is therefore not going to say anything controversial
• Julian Zelizer, who declines to take any advocacy role at all

Liberal media? Where?