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Archive for September, 2021

Time to prosecute Donald Trump – posted 9/19/2021

September 19, 2021 2 comments

Former President Donald Trump organized a coup to overthrow democracy in America. Although he was not ultimately successful, Trump tried to steal the last presidential election to seize power for himself. In the process, he turned a formerly conservative party into a party of extremists. The Republican Party now poses a fascist threat to democracy.

Trump’s actions during his presidential term crossed many legal and ethical lines. In addressing the question of his potential prosecution, it is challenging to limit the inquiry about his crimes. I choose to narrow it down to Trump’s actions in the period of time after his electoral defeat and through January 6, 2021.

Arguably, refusing to support a peaceful transition of power after losing the election and organizing an insurrection to topple democracy are his worst crimes.

While there is dispute about whether a sitting President can be indicted on criminal charges, there is broad agreement that there is no federal prohibition on charging a former President who committed crimes while in office.

The biggest obstacle to prosecution is the seeming lack of will to do it. No previous president has ever been indicted. Prosecutors would, no doubt, wonder about both the obstacles in making a case as well as their chances for securing a conviction.

Trump is slippery. This is someone who has been a party in 3,500 lawsuits in federal and state court. In his book Plaintiff in Chief, James D. Zirin writes:

“Trump’s litigation history shows him more often suing than sued. It was how he engaged with people. He would sue almost anyone for anything. He never collected a big judgment, but he wasn’t in it for the money. Trump enjoyed the possession of money and the things that money could buy. But more than money, his goal was the possession of supreme power, the joy of domination over those who crossed his path.”

Zirin goes on to say that Trump has rarely won in court. Typically, Trump settles or, if he was the plaintiff, he drops the case. In his business career before the presidency, Trump was charged with race and sex discrimination, sexual harassment, fraud, breach of trust, money laundering and defamation. Between 1991-2009, his hotel and casino businesses filed Chapter 11 bankruptcy four times.

At the start of his presidency, he paid $25 million to settle the Trump University case where he swindled thousands of students. He also paid $2 million for misusing his charitable foundation.

Lawsuits are a sport for Trump. They have often been more about getting headlines for himself than actually winning. Even when Trump loses, he will say he won. Sound familiar?

There is deep cynicism about the legal system protecting rich people, including sleazy rich people. Money talks. Still, I would suggest that Trump’s track record proves he should not be considered above the law. In the past, he has lost in court and he has had to pay or negotiate very expensive settlements.

Many seem to think Trump is some kind of teflon Superman as a litigant. History shows he is not. That is not to say he will not use scorched earth tactics that most reasonable lawyers and judges despise. That is his game. He will automatically label any investigation of his criminal activity a “witch hunt”.

It is legal error to think that a powerful case cannot be made against Trump for his actions in the last period of his presidency after the November 2020 election. A conviction could be obtained on multiple charges. Inciting an insurrection to prevent Congress and Vice-President Pence from counting electoral votes cannot possibly be kosher.

Laurence Tribe, the Harvard Law professor and constitutional law expert, has argued that Trump engaged in conspiracy to commit sedition, an extreme abuse of power. Trump was in cahoots with the Proud Boys, the Oath Keepers and others to prevent Congress and Vice President Pence from certifying an election winner.

Trump aided and abetted assault and battery against U.S. Capitol police officers. When he had the opportunity to call off attackers, he refused. There is a strong argument that his speech alone on January 6 incited a riot. Back on December 19, he had tweeted that people should come to a Washington DC on January 6. He said it would be “wild”.

The Trump 2020 campaign, along with its fundraising committees, made more than $3.5 million in direct payments to people and firms involved in the Washington DC protest on January 6. After taking the stage at noon on January 6, Trump spoke for an hour and fifteen minutes. Among other things, he said:

  • “They rigged it like they’ve never rigged an election before.”
  • “When you catch somebody in a fraud, you’re allowed to go by very different rules.”
  • “And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country any more.”
  • “And we’re going to the capitol…But we’re going to try and give our Republicans, the weak ones, because the strong ones don’t need any of our help. We’re going to try and give them the kind of pride and boldness they need to take back our country.”

During his speech, the crowd started chanting “Fight like hell” and “Fight for Trump”. When Trump finished, the chants changed to “Storm the capitol”, “Invade the Capitol Building” and “Take the Capitol right now”.

While Trump is an expert at walking the line and creating plausible deniability, it is fair to say that many in the mob stormed the capitol at his direction. A number of the insurrectionists have said as much in defense of their own cases.

No case that might be brought is ironclad. There are two cases that have been brought by U.S. Capitol police officers. There are also the lawsuits filed by Congressman Eric Swalwell and Bennie Thompson, citing violation of the Ku Klux Klan Act.

I would also be remiss if I did not mention Trump’s election interference. Both his actions in Georgia pressing their Secretary of State to “find” votes and his pressure on Acting Attorney General to declare the election “corrupt” are actionable.

The Department of Justice could prosecute Trump. Part of saving democracy is sending a clear message that breaking the law in the Oval Office will be punished. Congress’ failure to follow through on the impeachments and remove Trump did not send the necessary message.

Not to prosecute sends a different message: that an out-of-control President faces no consequences. It almost guarantees future repetition of the type of misconduct that Trump exemplified.

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The U.S. Supreme Court has become an embarrassment – posted 9/12/2021

September 12, 2021 1 comment

Probably no institution has been held in higher regard than the U.S. Supreme Court. In spite of a checkered history, the Court has been almost venerated which makes it particularly painful to note its Texas abortion decision. Or I should say anti-abortion decision.

In a shadow docket decision, the Court acquiesced in Texas’s enactment of a law that flouts almost fifty years of federal precedent.

The Texas law represents the most significant challenge to abortion rights since the Supreme Court struck down another Texas law that criminalized abortion in Roe v Wade. The new law bans abortion after six weeks of pregnancy. Many women will be unaware that they are even pregnant at that point. The law also makes no exceptions for rape, incest or nonviable pregnancies in which the fetus has detectable cardiac activity or cases in which the fetus has a fatal and untreatable condition.

The law has other odious features. It has a novel enforcement mechanism. Private citizens can bring a civil lawsuit against any person “who performs or induces an abortion” or who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion”. If the private citizen prevails, they can win $10,000 and payment of their attorney’s fees. As has been pointed out, this is a bounty hunter’s delight.

When the Court overturns constitutional rights that have been guaranteed for almost fifty years, it is not simply embarrassing. It is so out-of-touch that it promotes disrespect for the rule of law.There are so many things wrong with the Court’s cursory decision that I simply wanted to list what floored me.

  • There are six million women of reproductive age in Texas. In taking away constitutional rights guaranteed by Roe, it denies women control of their own bodies. The Court treats women like they are broodmares, not autonomous citizens with rights.
  • Almost all abortions are barred by the Texas law. Abortion providers in Texas say that 85 to 90 percent of the abortion procedures they previously performed were after the six week period.
  • The Court used the sleazy maneuver of the shadow docket to eviscerate constitutional rights in Texas. It is not just that the Court did something rotten – it is how they did it that stinks. Without a record, briefing, and argument and with no split in the circuits which is typically required, the Court, in an unsigned opinion, took a drastic step when there was no need to do it. They have already accepted a Mississippi case, Dobbs v Jackson Women’s Health Organization, that will be heard in the next term that raises the question of a 15 week abortion ban.
  • The Court tossed aside the requirement of standing. Any bounty hunter can sue someone who “aids or abets” an abortion. This could mean a friend, a counselor, a doctor, or a taxi driver. Contrary to law around standing, bounty hunters need have no involvement in the particular case.
  • Many have accurately compared the bounty hunter provision of the Texas law to the nineteenth century Fugitive Slave Act. The Fugitive Slave Act deputized citizens to surveil, stalk, and apprehend people trying to escape slavery. The bounty hunter provision of the Texas law could not be more parallel to the Fugitive Slave law.
  • Allowing no exception for rape, incest and nonviable pregnancies is medieval. It evidences that the law’’s authors have an absolute disregard for women’s lives. Responses like that of Texas Governor Greg Abbott that he is going to end rape are laughable. The law makes an exception for “medical emergencies” but that law is undefined. It will be up to doctors to decide whether their patient qualifies and they could be sued by those who disagree.
  • The Texas law will disproportionately adversely affect low-income people, minorities and people who live far away from abortion clinics. It is a safe bet well-off people will have the means and connections to get reproductive care outside the state. The poor will suffer more. It is also reasonable to speculate that the law will intimidate some people out of getting abortion care they need and others will seek unsafe underground abortions out of desperation..
  • The United Nations Working Group on Discrimination Against Women and Girls has condemned the Texas abortion law as sex discrimination and a violation of international law.
  • In contrast to the United States, Mexico’s Supreme Court just de-criminalized abortion. The United States will likely be joining countries like Egypt, El Salvador, Iraq and Mauritania in having the most reactionary laws in the world around abortion rights.

Not surprisingly, the Biden Administration, through the Department of Justice, stepped in and filed a civil lawsuit to stop Texas’s abortion law. Attorney General Merrick Garland correctly called the Texas law “a scheme to nullify the Constitution of the United States”. He also pointed to the likelihood other states will follow the Texas roadmap. It remains unclear how this will play out.

The Texas case shows that dressing up in Handsmaid’s Tale outfits is not enough. The Democrats’ neglect of the Supreme Court and its politics is coming home to roost. You have to ask: how many significant policy initiatives would survive Supreme Court review? The Republican shenanigans with blocking Merrick Garland and the tragic death of Justice Ginsberg have paid off for them. The Republicans are purveyors of the ultimate realpolitick.

While the term “court-packing” has an unfortunate negative connotation, Democrats need to add possibly four seats to the Court. There is no constitutional limitation on increasing the number of justices on the Supreme Court. The Court originally had six justices. It can be done. Republicans are the last ones who have the right to cry foul. Their gaming made horrible decisions like the Texas abortion case possible.

The new ultra-conservative Supreme Court is at the beginning of what could be a long run. The vision of the current Supreme Court majority appears to be nineteenth century Christian nationalism featuring unregulated crony capitalism and subordinate women and minorities. The future as the past is less than inspiring.

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War is a racket – posted 9/5/2021

September 5, 2021 5 comments

Probably like many, I remember exactly where I was when I first heard about the events of 9/11. I was on my way to work in Claremont, listening to Don Imus on my car radio. Imus sportscaster, Warner Wolf, reported on seeing the World Trade Center on fire as he watched from his Lower Manhattan apartment. I had a hard time leaving my car as I listened to the events unfold.

Now, 20 years later, I suppose I have a dark view. There is an unfortunate direct line of unbridled and relatively little-questioned militarism from the Vietnam War to the war on terror. We have seen the collapse of the Soviet Union, the end of the Cold War, the failure of any peace dividend, and the almost endless wars in Iraq and Afghanistan.

While mainstream commentators may deplore aspects of our military interventions, I would like to offer a more critical take on how we have been led into never-ending wars.

In the middle of World War I, progressive critic, Randolph Bourne, wrote, ”War is the health of the state”. To understand the American obsession with war, the place to look is our military-industrial complex. Since the end of World War II, it has expanded as a way to massively subsidize corporations and as a mechanism for employment. The military industrial complex depends on war and a search for new enemies.

As a society we have developed an addiction to the war business. Congress always approves enormous military spending and that is a bi-partisan affair. There are multiple pots of money devoted to fighting wars, preparing for more wars and dealing with the consequences of wars previously fought. Some few Democrats complain about the size of the trillion dollar war budget but, in the end, they are always ignored. There is too much money to be made by the military-industrial complex.

The Pentagon and its contractors thrive on new weaponry and there are never-ending opportunities to develop more sophisticated and advanced instruments of death from guns to tanks to drones to nukes.

The United States does not have a classic colonial empire but it does have roughly 800 military bases located in more than 70 countries and territories abroad. We can project military power anywhere in the world. We have created a global military machine to police a global empire. A big part of the reason for the empire is for the protection and control of world markets.

Americans have been fed a steady diet of propaganda to justify our continuing military interventions. We need to appear benevolent and we need to appear like we are fighting for democracy. So it has always been with imperial states. Governments all use a sales effort and marketing to sell war. In this, I do not think we are different from other empires.

A senior United States Marine Corps officer, Major General Smedley Butler, who served in military actions in the Philippines, China, Central America, the Caribbean and France in World War I, wrote in his book “War is a Racket”:

“Beautiful ideals were painted for our boys who were sent out to die. This was the “war to end wars”. This was the “war to make the world safe for democracy”. No one told them that dollars and cents were the real reason. No one mentioned to them, as they marched away, that their going and their dying would mean huge war profits.”

Butler went on:

“I spent 33 years and four months in active military service and during that period I spent most of my time as a high class muscle man for Big Business, for Wall Street and the bankers. In short. I was a racketeer, a gangster for capitalism. I helped make Mexico and especially Tampico safe for American oil interests in 1914. I helped make Haiti and Cuba a decent place for the National City Bank boys to collect revenues in. I helped in the raping of half a dozen Central American republics for the benefit of Wall Street. I helped purify Nicaragua for the International Banking House of Brown Brothers in 1902-1912. I brought light to the Dominican Republic for the American sugar interests in 1916. I helped make Honduras right for the American fruit companies in 1903. In China in 1927 I helped see to it that Standard Oil went on its way unmolested. Looking back on it, I might have given Al Capone a few hints. The best he could do was operate his racket in three districts. I operated on three continents.”

I do not see the last twenty years since 9/11 as that different from Butler’s era except that the militarism has vastly expanded. War is good for Lockheed Martin, Boeing, Northrup Grumman, their executives and lobbyists and others of their ilk. We still have a revolving door where retired Pentagon officials get jobs with arm contractors while working class people die to support the war profiteering.

Four administrations spent many trillions fighting the war on terror and they always wrongly lauded progress. During that time we saw renewed use of torture and creation of black sites, increased use of drone assassinations, mass warrantless surveillance, the Patriot Act and the weakening of the Fourth Amendment.

I worry that the military industrial complex is already ratcheting up for the next war, possibly against China. Threat inflation is their business.

Right now the United States is building ultra-expensive new nuclear weapons. Northrup-Grumman Corporation has a contract to replace our aging Minuteman III missiles. The Pentagon purchased 659 ICBMs. By some insane logic, this is seen as a military necessity. Among others, Daniel Ellsberg has pointed out the faulty logic and the obsolescence of ICBMs.

We could take steps to back off from the self-destructive militarism. Congress could begin by repealing the 2001 and 2002 Authorizations for the Use of Military Force. They have been used too broadly to authorize forever-war.

Our biggest national security threat is climate change. Increasingly, the U.S. military and other militaries around the world will need to focus on disaster relief, flood prevention, firefighting and population resettlement. The handwriting for that is already on the wall.

When he wrote these words back in 1963, Bob Dylan was ahead of his time:

“Come you masters of war
You that build the big guns
You that build the death planes
You that build all the bombs
You that hide behind walls
You that hide behind desks
I just want you to know
I can see through your masks”

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