Jonathan P. Baird

After the January 6 Committee released its report, it would be easy to conclude that we learned everything about Donald Trump’s attempt to stay in power after the 2020 election. Recent events show that is not the case.

The website, Talking Points Memo, produced a new series of articles that shed light on how lawyers for Trump attempted to create new pathways for Trump to stay in power. Much of the information that was the basis for the series were documents obtained from former Trump lawyer, Kenneth Chesebro. He turned over documents, including texts, emails and legal memos, to Michigan’s Attorney General Dana Nessel who has been investigating Trump’s fake electors scheme.

What the documents show is a somewhat different view of how Trump’s legal team wanted to keep the electors’ certification unresolved for as long as possible. They wanted to create chaos in Congress for weeks after January 6. The hope was that if they could create enough delay and confusion, they could get a case to the U.S. Supreme Court. They gamed out scenarios but their hope was that a deadlock would lead to the Supreme Court deciding Trump should stay on as President.

Among the colorful, ever-changing group of Trump attorneys, Chesebro stood out. A Harvard law graduate who had worked closely with famous constitutional law scholar Laurence Tribe and who had extensive appellate experience, Chesebro had a reputation as a creative thinker. His lawyer Manny Arora described how Chesebro differed from others on the Trump legal team:

“He’s the only one who could validate what he was saying through facts and law versus talking about space lasers and Hugo Chavez.”

Chesebro provided a veneer of respectability to a disreputable enterprise . He was the brains behind the fake electors’ plan. He edited John Eastman’s memo that argued Vice President Mike Pence could reject electoral votes on January 6.

Chesebro hoped Mike Pence would decline to open Biden electoral votes especially in key swing states. He formulated multiple ways the Electoral Count Act, the procedure for how Congress certified the election, could be invalidated. Chesebro hoped to set off a constitutional crisis.

Because he knew Mike Pence was not on board, he had a contingency plan to organize a Senate filibuster. Using the claim of voter fraud, he proposed that Republicans try and overturn time that limited debate to two hours for every state. He wanted leading Republican senators like Ted Cruz, Mike Lee and Josh Hawley to lead the filibuster.

Before the Electoral Count Act was amended in 2022, one senator and one representative objecting to a particular state’s result could lead to a time-limited debate. Chesebro envisioned Congress becoming deadlocked in the face of the presentation of voter fraud in multiple states even though those allegations were consistently proven to be false.

Chesebro knew his best chance was to win over Mike Pence. He believed Pence could force hearings in swing state legislatures. These were the states where the Trump campaign had organized slates of fake electors.

If Pence didn’t play ball, Chesebro believed he could use Senator Chuck Grassley (R-Ia), the president pro tempore of the Senate, to play the role Pence would not play with the Electoral Count Act. He wanted Senator Grassley to file a lawsuit to invalidate the Electoral Count Act when the Democrats protested.

Chesebro looked to the U.S. Supreme Court in the hope they could be forced to pick who would be President. Legal gambits were seen as the vehicle to reverse Trump’s electoral loss. Talking Points Memo quotes John Eastman as speculating that Chief Justice Roberts might be on their side if not for fear of how “to account for the riot angle”. That angle is the fear that the Supreme Court overturning Biden’s electoral vote win would lead to massive public protest and further discrediting of the Court.

January 6 is known for the insurrection but I would suggest it is Trump’s legal shenanigans which may prove to be even more dangerous. They could be re-employed by bad faith actors in 2024. Because the Electoral Count Act was amended in 2022 in Congress, legal ploys in 2024 will probably take a different form than those used in 2020.

In an important article in the Washington Spectator, “Dancing in the Dark: Steps to Avoid a Constitutional Coup in the 2024 Election”, Mark Medish and Joel McCleary spell out possible ways Trump and his allies might try again to upend the presidential certification process in the House. If the Republicans win the House in 2024 and maintain the Speakership, there is potential for mischief. A lawless party believing in the Big Lie could seek an anti-majoritarian outcome.

Medish and McCleary note that in 2020 the current House Speaker Mike Johnson organized 138 Republican House members who were in the minority to refuse to certify Biden’s election. Trump has never accepted the result of the 2020 election and he will never accept any result other than winning. With a loss, potential jail time looms. Flashing lights should be going off. Trump has proven he is not someone who believes in the peaceful transfer of power.

Kenneth Chesbro pled guilty in Georgia to one felony count to commit filing false documents. He had provided state-specific instructions in battleground states for how Trump presidential elector nominees would meet and cast electoral votes for Trump even though Trump lost in those states.

We should expect more sketchy lawyers who will cross the legal line and spin for Trump in 2024. There are no shortage of unscrupulous lawyers who will say their efforts to overturn an election are protected by the First Amendment. Crafting pseudo-legal arguments to reverse democracy is unethical and criminal.

Lawlesssness and control by brute force are hallmarks of authoritarianism. All people who see the need to protect democracy should be anticipating and imagining the likely ploys by the MAGA Republicans.I don’t believe courts will save us. Saving democracy depends on the actions of the American people.

The bi-partisan border deal that the Republicans ultimately walked away from on orders from Donald Trump was a Stephen Miller wish list. It embodied a number of terrible, cruel ideas. Yet, the Democrats promoted this bill as a clever compromise that would supposedly take away the issue of immigration from Donald Trump and the Republicans.

You have to ask: why are the Democrats agreeing to the most repressive Republican ideas? Isn’t the role of the Democrats to propose a moral alternative that doesn’t betray vulnerable immigrant populations? In this instance, the Democrats were following the old Clintonian triangulation playbook. They were trying to be tougher than the Republicans, something they will never be able to do. The Republicans will always out-fascist them.

A few years back the Democrats were horrified by children in cages and the brutality and ugliness of family separation. They supported Dreamers and a pathway to citizenship. They argued for a humane asylum process based on individualized determinations and due process. Now all that is gone.

In an effort to remove immigration as an issue the Republicans can use against Democrats this fall, the Democrats have forsaken their old views and adopted Trump’s position. How phony and inauthentic! And it will never work.

The border deal would have doubled ICE’s budget. It would have greatly expanded detention capacity with $3 billion more for increased detentions. It would have required asylum seekers to show greater proof to seek refuge in the U.S. and it would have introduced a new process that would have allowed the immigration service to decide asylum claims without going through the immigration court system.

It would have given the Department of Homeland Security the authority to shutter the border if daily illegal crossings topped 4000 migrants a day for a week. During such shutdowns, the government would have the authority to perform many quick deportations. The bill would have required the Biden administration to use money already laid out for border barriers on a Trump-type fence which was supposed to be 18 to 30 feet high with “anti-dig” and ‘anti-climb” features.

There’s no doubt immigration is an enormously challenging issue. The number of immigrants seeking entry into the United States is staggering and federal resources have been very insufficiently allocated to ease the burden on many locales. Fox News and other far right news outlets that ruthlessly demagogue the issue and scare the hell out of the public make things much worse.

That said, there is still a split screen reality. According to the Congressional Budget Office, the surge in immigration has been a $7 trillion gift to the economy including to federal tax coffers. On 60 Minutes, Federal Reserve Chair Jerome H. Powell said:

“..the U.S. economy has benefited from immigration. And finally, just in the last year a big part of the story of the labor market coming back into better balance is immigration returning to levels that were typical of the pre-pandemic era.”

The increase in working-age immigrants helped to offset the retirement of baby boomers. The labor shortage in America has been real. Immigrants, whether they are working in agriculture picking fruit, working in industrial or meat-packing jobs or doing needed care-taking of disabled or elderly people are filling jobs that would otherwise not be filled.

People who say immigrants are stealing jobs could not be more wrong. Immigrant workers are doing the jobs other workers will not do. Fruit would be rotting on trees and vines without immigrant workers doing that work.

It was sickening to see New Hampshire Democrats going along with Governor Sununu’s stunt sending New Hampshire National Guard troops to the southern border. Sununu is just playing the usual Republican game of associating immigrants with crime. The idea that illegal immigrants threaten New Hampshire is ridiculous.

The fear and panic promoted by Republicans and their media tools ties into a long scare-mongering racist tradition in American history. Vilification of brown-skinned immigrants is nothing new. Over 100 years ago writers like Madison Grant, author of The Passing of the Great Race, and Lothrop Stoddard, author of The Rising Tide of Color Against White World Supremacy, more directly made the white supremacist case.

These racist American authors later inspired the Nazis in Germany, They openly advocated extreme limitation of immigration and their writing helped to lead to the very restrictive Immigration Act of 1924. The law legitimized xenophobia. It worked hand in hand with Jim Crow segregation.

The early 20th century racist politicians made the same arguments opponents of immigration make now. Then they claimed Jewish refugees would take jobs away from worthy Americans. Now they claim it is Latinos from Central America.

It is not surprising that Republicans embrace Donald Trump’s racist brand of immigration restrictionism but there is no excuse for Democrats to reinforce xenophobia and racism as they did with the border bill fiasco. Are Democrats even talking to immigration rights activists now? They don’t talk about the human suffering going along with the Republicans will cause.

According to the United Nations, the U.S. southern border is the most violent migration border crossing in the world. Over 700 died in 2022 trying to cross and that is likely an underestimate. Our nation has the resources to have a far more humane immigration policy that greatly decreases the violence and death.

Trump is promising that if he is reelected he will pursue “the Largest Domestic Deportation Operation in History”. According to an article in the Atlantic by Ronald Brownstein, Trump plans to requisition National Guard troops from red states and deploy them into Democratic-run cities and states to act like a gestapo. Stephen Miller says that he would seek to remove 10 million people.

The Democrats should have no part in these vicious schemes. Instead of collaborating, they should be calling out the implicit fascism. Adopting cruelty and blaming immigrants will not win Democrats any election. It will turn off and alienate a critical part of the Democratic base, young people and minorities. Just a commitment to lessening human suffering would be a better approach.

Last March there was a Broadway revival of the musical, Parade. It starred Ben Platt who played the role of Leo Frank, the only Jewish person ever lynched in the United States. That happened back in 1915. Weirdly, the opening of the show provoked a protest by neo-nazis who protested outside the theater. They handed out flyers that accused Frank of being a pedophile and child murderer.

I didn’t think that much about it until recently when, out of curiosity, I looked into Leo Frank’s story. What is shocking is the volume of online hate directed against Leo Frank, even now. There is an active cottage industry among neo-nazis dedicated to implicating Leo Frank in the murder of a 13 year old white girl. Mary Phagan. Heidi Beirich, director of the Intelligence Project of the Southern Poverty Law Center has said:

“The Leo Frank case is interesting in that you’re never going to meet a Nazi who doesn’t know about it.”

Frank’s story is well told in a book The Silent and the Damned by Robert Seitz Frey and Nancy C. Thompson. Frank was the superintendent of a pencil factory in Atlanta where the murder occurred. He consistently maintained his innocence. The prosecution relied on circumstantial evidence and the testimony of Jim Conley, the factory janitor.

Conley claimed that Frank forced him to participate in the crime. He maintained that Frank made him write two notes found near Mary Phagan’s body. Conley had an extensive police record including crimes of violence against women and his description of events on the day of the murder was full of contradictions. From the time of his arrest, his story changed repeatedly.

At trial, Frank testified that he knew nothing about Phagan’s death. Frank had 200 character witnesses testify on his behalf but rumors circulated in the public that Phagan had been sexually assaulted. The effect was inflammatory.

The overall view of historians is that Frank didn’t murder Phagan. Antisemitism permeated the proceeding. The historian Leonard Dinnerstein reported that one juror had been overheard to say before his selection for the jury:

“I am glad they indicted the goddamn Jew. They ought to take him out and lynch him. And if I get on that jury, I’ll hang that Jew for sure.”

Steve Oney, author of the book And the Dead Shall Rise described the public mood in Atlanta during the trial:

“The atmosphere of the courtroom was poisonous. Frank really had four strikes against him – he was an industrialist, he was a Yankee, he was a Jew and while he was indicted for the murder of Mary Phagan, he was simultaneously in the public eye, on trial as a sexual predator.”

The Court convicted Frank and the judge sentenced him to death by hanging. Appeals at both the Georgia Supreme Court and the U.S. Supreme Court failed. Justices Oliver Wendell Homes and Charles Evans Hughes dissented. They argued that the trial took place in the midst of a mob atmosphere where neither the defendant nor counsel were safe from the rage of the crowd.

Over two years after the trial and before any execution, Georgia Governor John Slaton commuted Frank’s death sentence to life in prison. The next day Slaton left office. His decision provoked martial law in Georgia. For safety reasons, Gov. Slaton had to leave the state. Demonstrators marched outside the Governor’s mansion saying “We want John M. Slaton, King of the Jews and traitor Governor of Georgia.”

Much of the hatred against Frank was whipped up by racist political leader Tom Watson. Watson used his popular magazine the Jeffersonian to attack Frank as a “Jew pervert, a degenerate, and a Sodomite”. Watson argued for lynching.

The prison authorities moved Frank to a prison farm in Milledgeville, Georgia. Several weeks after the move, another inmate attacked Frank while he slept. Frank barely survived as the other inmate badly slashed his throat with a butcher knife. The quick actions of a surgeon who was also a prisoner saved Frank’s life.

On the night of August 16, 1915, seven vehicles carrying 25 men from Marietta, Mary Phagan’s home town, drove into Milledgeville. They abducted Frank from the prison hospital and drove him 100 miles back to Marietta and then they proceeded to lynch him.

The lynch mob was made up of Marietta’s leading citizens. They never tried to hide their identity. They had colluded with the prison staff and the parole board to kidnap Frank. No shots were fired in the abduction. The mob members called themselves the Knights of Mary Phagan. The next morning Frank was still hanging from an oak tree. Onlookers found Frank was still alive but no one cut him down.

An estimated 15,000 people came to view Frank’s body. Pictures of his body were sold for 25 cents a piece.

As happened with the thousands of lynchings of African Americans, no one was ever charged or stood trial for the lynching. In 1982, new evidence emerged. A former worker in the pencil factory. Alonzo Mann, 83, came forward and said he saw Jim Conley carrying Phagan’s body in circumstances that contradicted Conley’s testimony. In 1986, the state of Georgia granted Leo Frank a posthumous pardon.

The Jewish community in the South was traumatized by these events and, out of fear, people chose to lay low for a very long time. Jew haters played on the same myth used against black men that lascivious men ( this time Jewish) were intent on deflowering Southern womanhood.

Conspiracy theories about Jews were epidemic then and now. The MAGA movement, which is anti-intellectual at its core, has given permission for all manner of hate to thrive including against immigrants. LGBTQ people, Muslims and Jews. Since Trump’s presidency anti-Jewish hate crimes have spiked.

Leo Frank’s story stands as an example of where hate leads. Neo-nazis see Jews as a distinct race of people who have fixed traits that make them inferior to white Christians. Americans must stand against all hateful stereotypes. Hate in America remains very much alive.

With fascism very likely on the ballot in November (and I am talking about you, Donald Trump) the question emerges: how do Democrats maximize their voter turnout to guarantee electoral victory?

I would suggest that the Biden campaign has so far been doing a terrible job at ensuring that high turnout. Instead of supporting its base of minority voters, young voters, working people and progressives, Democratic leaders are shooting themselves in the foot. It has much to do with Israel/Gaza and Biden’s disastrous embrace of Bibi Netanyahu.

Much of the Democratic base is anti-war and wants the Biden administration to demand a ceasefire. Israel has gone too far and grossly over-reacted to Hamas’s horrifying attack on October 7. Voters of all stripes are fearful that Israel’s war on Gaza will ignite a wider Middle East conflict.

The war has provoked a fissure among Democratic voters. According to an AP poll, 70% of Democrats under 45 disapprove of Biden’s response to the war and 60% of non-white Democrats disapprove. This is in contrast to 60% of older Democrats and roughly 50% of white Democrats who approve.

The New York Times reported on January 28 that more than 1000 Black pastors representing hundreds of thousands of congregants are pressuring the Biden administration to push for a ceasefire. The article quoted Rev. Timothy McDonald, senior pastor of First Iconium Baptist Church in Atlanta. Rev. McDonald said:

“Black faith leaders are extremely disappointed in the Biden administration on this issue. We are afraid and we’ve talked about it – it’s going to be very hard to persuade our people to go back to the polls and vote for Biden.”

In Michigan, a swing state, Muslim and Arab-American leaders canceled a meeting with President Biden’s campaign outreach team because of Biden’s failure to call for a ceasefire. That bloc of Muslim and Arab-American voters is significant in a state that Biden won in 2020 but Trump won in 2016.

Biden seems to be assuming young people will vote for him but multiple polls show disillusionment. Many young people may simply sit out the election without casting a ballot. The Guardian quotes a young woman activist, Elise Joshi, Executive Director of an organization, Gen-Z for Change, who was a Biden voter in 2020:

“My generation is appalled. There’s a lot of people who are not willing to put their votes towards this administration as a result of their actions in Gaza.”

Instead of responding to what is a mass outcry, Democratic leadership has been largely mute. Nancy Pelosi had a particularly offensive response to the ceasefire demand. In a CNN interview, she suggested that some protesters calling for a ceasefire in Gaza could be linked to Russia and she urged the FBI to investigate. That response may be the height of cluelessness.

I write as a progressive Jewish American who has supported a two state solution. I too was disgusted and horrified by what Hamas did on October 7 but Israel’s response has not been proportionate to the original Hamas crimes. It was been a massive over-reaction. To date, more than 27,000 people have been killed in Gaza by the Israeli offensive with more than 66,000 wounded. Of the dead, more than 11,500 are children.

Since October 9 Israel has blockaded access in Gaza to water, food, fuel, medicine and medical supplies. Israel has only allowed in very limited quantities of food, water and medical supplies. More than 80% of the Gaza population has been internally displaced. This amounts to collective punishment of the entire civilian population.

There is a reason the International Court of Justice in The Hague found that Israel has engaged in acts that could plausibly constitute violations of the Genocide Convention. Israel has failed to protect the civilian population in Gaza.

The present government in Israel led by Bibi Netanyahu is far and away the worst Israeli government in the history of the Jewish state. It is an alliance of the most racist, inhumane and backwards elements in Israel like Minister of National Security Itamar Ben-Gvir and Finance Minister Bezalel Smotrich, both acolytes of the hateful ultra-nationalist Meir Kahane who espoused violence and the creation of a theocratic Jewish state. Netanyahu has now explicitly opposed a two state solution.

Many progressive Jews join with Black clergy, Arab-Americans and young people in demanding a ceasefire now. Witness the emergence of Jewish Voice for Peace, IfNotNow, and publications like Jewish Currents.

While conventional wisdom may be that Americans don’t vote on foreign policy, that isn’t accurate. The Vietnam war comes to mind. That war drove a Democratic president out of running for re-election. The war in Gaza has touched a moral nerve and the Biden administration has failed to navigate a balanced approach that considers the legitimate interests of the Palestinians in Gaza.

It appears that Democrats will run primarily against Trump and for democracy. They will also emphasize abortion rights. Both are important. It may be enough to win because they are running against an adjudicated rapist facing 91 felony counts. But still, the margin between the parties is too close for comfort. Past presidential elections show the consistent tightness in swing states.

There is still quite a bit of time until November. By reversing course and forcing Israel into a permanent ceasefire (which I believe he could do), Biden could regain some lost ground and strengthen his hand for November. To win, he needs great base turnout. If he continues to take his base for granted, Biden will be playing with fire.