Jonathan P. Baird

Back in 1980, when I was a young activist living in Boston, I had the opportunity to hear Clarence Norris speak. He was the last surviving Scottsboro Boy. He died in 1989. Norris came to Boston to rally support for Willie Sanders, a black man from Dorchester who had been wrongfully accused of committing a series of rapes in the Allston-Brighton section of Boston.

That night I remember Norris saying,”Nothing has changed as far as framing innocent black men are concerned.”

The story that Norris told should be widely known. The Scottsboro Boys were nine young black men who in 1931 were accused of raping two white women. The case became an international cause celebre. After years of Jim Crow, the defense of the Scottsboro Boys became the first interracial civil rights effort in 40 years. All over the nation, black and white people held demonstrations protesting and demanding freedom for the nine.

Segregation was the legally-maintained way of life in the United States back then. Since the 1890’s white people generally had acquiesced to white supremacy and had a weak history of opposing racism. Scottsboro was a turning point away from that acquiescence.

The country was plunged in the Great Depression and times were desperate. Unemployment and hunger ruled. The nine black males who became the Scottsboro Boys were hoboing on a train, traveling and looking for work. After a conflict with a group of white men who they kicked off the train, word spread about the fight. When the train, which was moving very slowly, reached Paint Rock, Alabama, a crowd of white men gathered including some who had earlier been forced off that train.

Two white women appeared and claimed they had been raped by the black men. A lynching almost occurred but the local sheriff managed to get the nine to a jail in Scottsboro Alabama. Higher authorities called in the National Guard because the situation was so volatile. Norris said, “I knew if a white woman accused a black man of rape, he was as good as dead. All I could think was I was going to die for something I had not done.”

Norris was 19. Only four of the nine even knew each other. One was 13 years old.

Southern white men were obsessed with the idea that black men had an insatiable sexual appetite for white women. Most lynchings were about that fantasy. The two women in the Scottsboro case, Victoria Price and Ruby Bates, had a past history of prostitution but they were transformed into paragons of white purity. Southerners saw the case as an attack on Southern womanhood.

Thousands came to Scottsboro for the trial. Two hundred National Guard ringed the courthouse. On the morning of the trial, a drunk 70 year old real estate attorney who spent 20 minutes with the defendants before trial took the case and urged them to plead guilty. The lawyer had not tried a case in decades. Besides the defendants, there were no black people allowed in the courtroom. The jury was all white men.

The trial lasted three days and all were found guilty of rape. Eight of nine defendants got the death penalty and one received life in prison. Of note, Ruby Bates could not identify any of her attackers. Price and Bates claimed they were raped at knife and gunpoint but no weapons were ever found. Nor was any medical evidence indicating rape produced at trial.

Outside the courthouse, huge crowds partied. When the sentences were announced, the crowd went wild with joy. People danced in the street. Bands struck up “Dixie” and “There’ll be a Hot Time in the Old Town Tonight”.

Three weeks after the trial, the International Labor Defense (ILD), a group connected to the Communist Party USA, decided to throw its resources into defense of the Scottsboro Boys.They appealed the verdict to higher courts and fought off execution dates. The defendants were often beaten by the guards. Their cells were close to the chamber with the electric chair. Lights dimmed in their cells whenever that chair was utilized.

Clarence Norris watched eight coffins be brought into the prison yard. He was scheduled to die that evening. A telegram arrived late in the day.. He and the others received a stay of execution. Their case went to the U.S, Supreme Court and the Court ruled 7-2 in Powell v Alabama that the defendants had received ineffective assistance of counsel in violation of due process. The Scottsboro case was the first case in which the Supreme Court held a state accountable to provide an adequate defense.

In an effort to get the Scottsboro Boys the best defense, the ILD reached out in unexpected fashion. They retained Samuel Leibowitz, possibly the best-known criminal defense attorney in the country. Leibowitz took the case pro bono. The Court had ordered a new trial. Leibowitz had a spectacular record of success having won 77 of 78 murder cases he had handled. One case had a hung jury.

Leibowitz’s presence stirred up tremendous resentment in the South. There was much sentiment that the “Jew lawyer” should go back to New York. In the second trial Leibowitz produced Ruby Bates as a defense witness. She asserted that she and Price had fabricated the rape story and testified they had never been touched by any of the Scottsboro Boys. The jury still found the defendants guilty but the trial judge set aside the verdict and ordered another trial.

Alabama then replaced the trial judge with someone who had never attended law school. The new judge denied all defense requests and sustained every prosecution objection. Again, for the third time, the jury made a guilty finding. Leibowitz again appealed to the Supreme Court. In Norris v Alabama, the Court agreed that Norris was denied equal protection under the Fourteenth Amendment. The Court found it was legal error that African Americans were excluded from serving on the jury.

Tired of the bad publicity, Alabama agreed to drop charges against four of the defendants. Norris was not among them. The fourth trial, which began July 13, 1937 ended in a guilty verdict with the death penalty. The four freed defendants went on a speaking tour on behalf of the five who were still being prosecuted.

Things were not easier for the five. The state moved them to another prison where they were made to work 12 hour days in a cotton mill. They were also subject to beatings by the guards. The health circumstances for the five worsened in the new environment.

After a prolonged negotiation with the Alabama governor, Norris had his sentence commuted to life in prison. In January 1944, Norris received parole but there was one condition. He had to stay in Alabama. Norris could not accept that and he moved to New York, violating parole .His lawyers convinced him though that he should return to Alabama. He had doubts but he was told he would not be returned to prison.

When he returned, he was incarcerated again for two more years. In 1946, he was again up for parole which he received. Once out of jail, he again violated parole by leaving the state. He headed north. He took another name. For the next 30 years he lived in obscurity, working a steady job as a sanitation workers. He was still wanted for breaking a condition of parole.

In 1976, Alabama’s Attorney General opened a new investigation of the case. The NAACP helped with this advocacy. Governor George Wallace pardoned Norris in October 1976. Norris unsuccessfully sought $10,000 in compensation for his mistreatment. Alabama never paid a dime. In November 2013, more than 80 years after their convictions, three other Scottsboro Boys who had never been pardoned got posthumous clearing of their records.

The Scottsboro story is told in Clarence Norris’s autobiography, The Last of the Scottsboro Boys. There is also a very good video history, Scottsboro An American Tragedy, which was made by PBS.

What is sad is Alabama’s failure of reckoning with the pointless suffering it inflicted. Nine lives were devastated. The case showcases our national failure since Reconstruction to rectify our national curse of racism. How many other Clarence Norris-type stories are out there that no one knows about? We are still failing.

Robust freedom of speech has been one of the greatest things about America. Mouthing off has been largely protected, whatever your political point of view. However, the scope of our First Amendment freedom is currently under threat like never before because of the actions of President-elect Trump and his MAGA movement.

The threat is about creating an atmosphere of intimidation so that people are afraid to exercise their freedoms. Fear can lead to inhibition and MAGA acts like a sledgehammer, trying to silence those in opposition to Trump policies. There are legal, political, and economic dimensions to the intimidation.

While it is not the most significant encroachment in the legal domain, I found Trump’s lawsuit against the Iowa pollster, Ann Selzer, telling. Trump is suing a well-known, much-respected pollster for the Des Moines Register for an election prediction that did not pan out. In a poll prediction, Selzer incorrectly believed Vice-President Harris would do better than she ultimately did. Trump is arguing Selzer’s poll was “election interference”.

Suing a pollster for a wrong prediction has a chilling effect. Pollsters are in the business of prediction. That is what they do. Lawsuits like this have the effect of making a pollster never publish a prediction that would disfavor Trump. The price becomes too high and the effect is corrupting.

The Selzer lawsuit must be seen in the context of Trump’s broader effort to propagandize that journalists are “the enemy of the people” who deliver “fake news”. And it is not just virulent rhetoric deployed constantly at his rallies where he singles out and directs anger, distrust and hate at journalists.

Trump has filed a lawsuit against CBS for the way it edited Bill Whitaker’s 60 Minutes interview with Kamala Harris. He has also filed a defamation lawsuit against ABC for George Stephanopoulos’s reporting on his E. Jean Carroll sexual abuse conviction.

ABC settled the defamation case paying Trump $15 million and $1 million in attorneys fees plus tendering an apology even though they had strong legal arguments in defense of Stephanopoulos. Many legal observers saw it as ABC bending the knee and obeying in advance. ABC is not alone. Joe Scarborough, Mika Brzezinski, Jeff Bezos and Mark Zuckerberg have all tried to suck up, make nice and regain favor. Bezos and Zuckerberg each gave Trump’s inaugural $1 million gifts.

Trump has called for punishing TV networks, including revoking their licenses to broadcast for coverage he deemed unfavorable. He also has called for prosecuting journalists. Trump doesn’t think criticism of his actions and policies should be protected speech. He wants to place the FCC under presidential authority. The President-elect is still suing Bob Woodward over audiotapes Woodward conducted with Trump for a 2020 book. Northwestern Law Professor Heidi Kitrosser described Trump’s modus operandi:

“He is going to punish people who dissent from his approach to things, people who criticize him and also, perhaps more importantly, investigative journalists and their sources who are not offering opinions but are exposing facts that he finds embarrassing and inconvenient.”

Free speech is reduced to freedom to agree with Dear Leader. Instead of tolerance for a wide range of views, what is allowed speech, narrows. This is how authoritarianism operates. It shrinks the allowable discourse and makes people afraid of the consequences for voicing anti-Trump perspectives.

Trump files lawsuits more with the goal of harassment and grinding people down than the goal of winning. For media outlets without deep pockets, the cost of litigation alone can be devastating. Such lawsuits make publishers question whether critical reporting about public figures is worth it. The practice even has a name – SLAPP, short for Strategic Lawsuits Against Public Participation. The effect is self-censorship.

Trump’s lawsuits work to make him less accountable and when he wins like with ABC he is emboldened. What he is doing is a form of bullying to get media to knuckle under and stop reporting critically.

Trump has been vocal about wanting to revise libel law. Under the U.S. Supreme Court decision in New York Times v. Sullivan, when someone makes a statement about a public figure regarding a matter of public concern, they can’t be sued for defamation unless they knew they made a false statement or they acted with “reckless disregard” for the truth. The current standard offers protection for journalists and Trump wants the precedent overruled so that it would be easier to sue news organizations and publishers.

Just the thought of Sullivan being overturned would send a shock wave through all of journalism. Fear of offending would dominate newsrooms and is greatly inhibiting. Money, especially in our current media environment, is always an issue.

Backing the legal and economic pressure is the sheer political thuggery of the MAGA movement. When things don’t go their way, we get January 6. Many examples come to mind especially the harassment of people like Ruby Freeman, Shaye Moss, Mitt Romney Judge Merchan, Liz Cheney, retired General Mark Milley, Rusty Bowers and all the election workers who wouldn’t go along with the Big Lie. All these people and many more have been subject to threats of violence.

There are no shortage of MAGA fanatics who will mindlessly and viciously jump whenever Trump tweets. They just need to be sicced on a target and many respond. Countless people have been harassed in a frightening way. Mitt Romney, who has had to spend a fortune on his own personal security against MAGA threats, revealed that many elected Republican senators were afraid to vote in favor of impeachment after January 6 because they were worried about physical violence from Trump supporters.

Authoritarianism and crony capitalism are incompatible with a vigorous First Amendment. Billionaires prefer dark money and no light shed on financial crimes. Students of history know that the First Amendment as we know it is relatively new, post-1960’s. For much of American history, it was much reduced and we must worry that we are heading back to such a period. Maintaining and protecting the First Amendment is a big part of what the struggle ahead must be about.

Early in the Communist Manifesto, Karl Marx wrote these famous words: “The history of all hitherto existing society is the history of class struggles”. Whatever one thinks of Marx, it is undeniable that class analysis provides a powerful searchlight on how to understand our world. Political figures bring an agenda, goals, financing and ideology to their campaign efforts. Analytically, it is valuable to consider what social class preferences their ideas embody and advance,

The old adage “follow the money” has utility in looking at who is behind politicians. Especially since the Citizens United decision unleashed an avalanche of money, the financial factor has become far more determinative. The money required to run as a viable presidential candidate is now astronomical. With that in mind, what class interests did the major party candidates reflect and what can that tell us about likely trajectories, especially of the President-elect.

As has been widely noted, Donald Trump has surrounded himself with a coterie of billionaires. Axios has reported that he has 14 billionaires staffing his administration. Besides Elon Musk and Vivek Ramaswamy, his efficiency czars, we have, to name a few, Howard Lutnick, his Commerce Secretary, Linda McMahon, his Education Secretary, Scott Bessent, his Treasury Secretary and Doug Burgum, his Interior Secretary.

In 2021, Forbes reported Joe Biden’s cabinet had a net worth of about $188 million. The Guardian puts the net worth of Trump’s administration leaders at more than $300 billion. These billionaires who poured many millions into Trump coffers donated with plenty of strings attached. They will want payback either through tax cuts or relaxed regulations. They want greed without limitation. We are talking Robber Baron 2.0.

Considering the outsized role of billionaires and the great probability that Trump policies will reflect the interests of the billionaire class, it is remarkable how he sold himself as an alpha male fighting elites. Trump is repelled by his own MAGA supporters and would never give them the time of day. Count on it that he considers his own supporters as easy marks. It is like the contempt he has expressed for veterans as suckers and losers.

No president in my lifetime has been as devoid of compassion but he is accomplished at image creation. Trump did win the votes of many working class people of all races and nationalities who were angry and wanted to lash out at the system. Trump successfully directed their rage at immigrants and trans people.

It was instructive to watch Elon Musk, the world’s richest man, saying the U.S. must “live within our mean” and that his proposed federal budget cuts will cause “temporary hardship”. I don’t believe the word “hardship” would exist in the Musk lexicon. Musk isn’t having any trouble living “within his mean”. How many countless billions are enough for these ultra-avaricious money grubbers?

Trump has emerged as an agent of the super-wealthy class of American oligarchs. He will feather his own nest while he will also be doing billionaire bidding. Money is his passion.Expect him to de-fang the IRS and allow the billionaires more opportunity to stash money off shore beyond reach.

One thing that surprises me is that the old-money American ruling class would feel comfortable letting someone who is a loose cannon like Trump mind the store. Our ruling class has had a much less flashy, hide-the-money style, complemented by a noblesse oblige tradition. Trump is the antithesis of that. I would think others with great wealth and power would worry about having a convicted felon in charge. It is not their preferred image of America.

Just on climate alone, I would imagine the old ruling class would find Trump very problematic. Children of the ruling class also need a habitable planet. Trump’s climate change denialism is dopey and short-sighted and I suspect it would concern scions of great wealth. Musk may choose to live on Mars but that is not an option for the rest of us.

As for the Democrats, they failed to appeal to the masses of working people who have been hurting economically and who have urgently felt the rising cost of inflation. Compared to 2020, they failed to turn out their base. A big part of the problem was the Democratic message that the economy was fine when voters were very dissatisfied and wanted change.

Whether out of loyalty to Biden or just wrong ideas, Vice-President Harris made clear nothing would change under her administration. Instead of being a change agent, she defined herself as someone who would be a continuation of Biden policies. Running as a status quo candidate when people are desiring change is a recipe for failure. Campaigning with Liz Cheney, she unsuccessfully tried to appeal to the moderate Republican voter, a seeming declining species.

Harris’s campaign embodied the internal class contradictions within the Democratic Party. The party includes corporate liberal billionaires, the professional-managerial class, labor unions, and many working class people. Harris emerged as a moderate, distancing herself from the party’s progressive wing. Gone was any mention of a Green New Deal, Medicare for All, a higher minimum wage and ending student loan debt. Out of fear of alienating constituencies, Harris shamefully avoided the issue of Gaza.

Her stance was a class amalgam, trying to bridge billionaire and worker interests, which led to a blurred politics. Harris talked in vague generalities about an opportunity economy. She refused to identify corporate villains and she did not direct anger at the ruling class for our outrageous economic inequality. She hoped it would be enough to talk about abortion rights and saving democracy.

In trying to appeal to the more conservative professional-managerial class in the suburbs, she failed to give her working class base reasons to vote for her. She proved to be out-of-touch with how much people were hurting. A survey by CNBC found 63% of workers cannot pay for a $500 emergency expense. Harris did not talk about evictions, homelessness, credit card debt or ending poverty.

In this last election, neither candidate spoke to the real economic needs of our working class. Two million less people voted in 2024 than voted in 2020 even though our population increased by 4.5 million. To win, Democrats need to give working class people reasons to vote for them. They need to speak far more clearly to universal pocketbook issues and they must stop being afraid to call out the billionaire class who are the architects of a society designed to funnel money to the 1%.

This last election cycle the plurality of voters went for someone who said he would blow things up. Many uninspired Democrats stayed home. Now we will all pay the price.

With all the stories about Joe Biden’s pardon of his son Hunter, I think the main story has been lost. Biden still has time to use his pardon power to good purpose. He has used the pardon power less generously than all recent presidents.

I would submit his sparing use of the pardon power, granted by the Constitution, reflects a mistakenly optimistic view of our justice system because it ignores so many injustices. President Biden has been hyper-cautious in the typically chicken Democratic Party fashion. Say what you will about Republicans, they are not afraid to pardon the biggest scoundrels whether they are super-rich fraudsters, racist cops, or slimy political operatives. Feckless Democrats want to to take a poll first to see what voters think.

Instead of being known for something he repeatedly promised he would not do (and that is the definition of personal self-interest), Biden could go out with a bang by pardoning America’s longest-serving political prisoner, American Indian Movement activist, Leonard Peltier.

Words against injustice are cheap. Clemency for Peltier would be meaningful. Peltier, now 80, has been in jail for 48 years. He is currently incarcerated at the United States Penitentiary in Coleman, Florida.

Pardoning Peltier and granting parole or compassionate release would be an important step in the healing direction Biden has indicated he wants to pursue. In late October, Biden issued what he called a “long overdue” formal apology for the abuse and trauma inflicted by the federal government’s Indian boarding school system.

Peltier himself was a victim of this policy. When he was nine years old, he was forcibly taken to an Indian boarding school in Wahpeton, North Dakota. He was made to remain there for three years. A pardon for Peltier would be something positive for which Biden would be forever known. It was talked about by Presidents Carter, Reagan, Clinton, and Obama but, in the end, none of them acted.

The request for pardon is more urgent in light of Peltier’s age and health. He is nearly blind and he struggles to walk. He has diabetes and he suffered an aortic aneurysm. He was hospitalized in July and October because his diabetes has caused him to develop open wounds and tissue death on his toes and feet. If Biden doesn’t grant a pardon, it is likely Peltier will die in prison. There is no chance Trump would grant him a pardon.

Not granting a pardon would be a missed opportunity to begin a process of rectification in our historic mis-treatment of Native Americans. America has never owned up to its genocidal track record. Nick Tilsen, president of the NDN Collective, an Indigenous-led advocacy group, explained this well:

“The way they have treated Leonard is the way they have treated indigenous people historically throughout this country. That is why indigenous people and oppressed people everywhere see a little bit of ourselves in Leonard Peltier.”

Two FBI agents and one Native American man died in the 1975 shootout on the Pine Ridge reservation in South Dakota. The FBI has long been opposed to Peltier’s release but they don’t talk about either their gross misconduct or the federal prosecutorial improprieties. Like happened to Martin Luther King Jr., Peltier and the American Indian Movement were targeted by COINTELPRO, the FBI’s effort to destroy 1970’s progressive movements.

The U.S. Attorney, James Reynolds, who prosecuted the case, has admitted the government was not able to prove Peltier committed any offense on the Pine Ridge reservation. All that was established was that Peltier was at the scene of the crime along with 40 other Native Americans.

The government dropped murder charges against Peltier because they had withheld exculpatory evidence. A ballistics test showed the murder weapon was not Peltier’s gun. The government ended up charging Peltier with “aiding and abetting” whoever killed the two agents but it was not proved whom he aided and abetted. His other co-defendants were acquitted.

In a later proceeding in 2003, the 10th Circuit Court of Appeals had this to say about the Peltier case:

“Much of the government’s behavior at the Pine Ridge Reservation and in its prosecution of Mr. Peltier is to be condemned. The government withheld evidence. It intimidated witnesses. These facts are not disputed.”

When commentators start talking about how Biden should pardon political opponents of Donald Trump who have committed no crime but who might be prosecuted in the future for bogus charges, I have to say I have a bad reaction. How can a hypothetical possible future charge be considered for parole rather than someone who has done over 48 years jail time?

When Peltier turned 80, he offered this birthday statement which I will quote, in part:

“When I was a child, I looked to my Elders to learn how to live within Mother Earth’s rhythms. I yearn to sit by the fire with my loved ones and have our children look to me to learn the mysteries of Mother Earth. I want to laugh, share the pipe, and gaze into the eyes of a woman who does not carry handcuffs.

I have become an Elder. I suppose, in many ways, I am still the nine-year-old who founded The Resistance among my peers at Wahpeton Boarding School, the young man willing to sacrifice everything to protect my people, and the young man who worked hard and played hard when the chance arose. At the same time, I feel every second of these past eighty years wreaking havoc on my body….

Remember, my people. Remember who you are. Mother Earth herself flows through our veins. We endure. The greed, corruption and disdain of the colonizers will bring them to their ruin. They seek to ravish Mother Earth while chasing the almighty dollar. We have survived their apocalypse. We are not simply enduring. We are destined to thrive…

They have never managed to cage my spirit. They never will. Do not allow anyone to cage yours.

In the Spirit of Crazy Horse!

Doksha,

Leonard Peltier

From the first moment you enter the federal government, you learn about the obligation to protect federal documents. All federal employees must complete record management training which includes mandatory annual refreshers. You learn that you cannot take classified or sensitive records during employment or when you leave federal service. The responsibility is drilled in.

So the dismissal of the Florida documents case against President-elect Trump sends a message. There are two standards of conduct: one for Trump and one for all other federal employees. Every federal employee knows their goose would be cooked for any records violation.

Small fry government employees will get crucified for mistakenly emailing personally identifiable information (PII) to a home computer but the President-elect can make an absolute mockery of the rules and he skates.

Even without a trial, we know Trump’s behavior was egregious. The boxes and boxes of records he pilfered and sequestered in a Mar-a-Lago bathroom and gilded ballroom became visible to the nation and they raise so many questions. What was that about? What documents did he take and why did he take them? Were there nuclear secrets? Spy secrets? Considering Trump’s greed it is hard not to think he had some plan to cash in. The documents were not souvenirs.

The indictment said hundreds of classified documents were taken from the White House, including sensitive documents about our nuclear capabilities. He repeatedly enlisted aides and lawyers to help him hide records investigators sought. The indictment details a July 2021 meeting at his Bedminster property where Trump bragged about having held onto a classified document prepared by the military about a potential attack on another country. Trump aides lied to the FBI about the movement of boxes at Mar-a-Lago.

I guess we will never know the true story as the Department of Justice is dismissing the case in light of Trump’s re-election. The case against two co-defendants still could proceed but, of course, Trump could pardon them. The system failed us. No one else has gotten away with anything like this. All we may get is a final report as is required by the Special Counsel regulations.

Of all the cases against Trump, and there were multiple strong ones, the documents case stood out for its brazen contempt for rules and law. Before the case was assigned to Judge Aileen Cannon, I assumed it would be the easiest case to prove of the multiple cases in which Trump was a defendant. Whatever his lame excuses, he absconded with documents he had no right to possess. There is no exception in the federal law. The evidence was overwhelming.

But things did not work out that way. Trump drew a judge who was in the bag for him. How did it happen that he drew Cannon? Aren’t judges supposed to be randomly and rotationally assigned to avoid preordained outcomes and the appearance of impropriety?

Judge Cannon had already been assigned to sit on the earlier case where Trump sued about the FBI search at Mar-a-Lago. In that case she made bizarre rulings that were reversed by the 11th Circuit. Trump had tried unsuccessfully to get Cannon as a judge in an earlier case where he had sued Hillary Clinton.

The journalist/lawyer James Zirin provided the best explanation I have seen for why Cannon got picked again to sit on a Trump case. He wrote that prosecutor Jack Smith could have filed the documents case in Washington DC but he probably worried about a change of venue motion causing delay and he figured he had decent odds to obtain an impartial judge in Florida. There are 26 federal court judges in the Southern District of Florida.

What Smith may not have known is that the Southern District is administratively divided into five divisions. Cannon was the only judge sitting in Fort Pierce which was treated as part of the Palm Beach Division. The pool of judges eligible to try the documents case was not 26 but 4. One of the four was a senior judge so the eligible pool was 3 and Trump lucked out.

Judge Cannon was the answer to Trump’s prayers. She was a known quantity as a Federalist Society member and as an extreme loyalist. She had demonstrated that in the earlier Mar-a-Lago search case. In the last days of his first administration, Trump had picked her to be a federal judge and got it through the Senate.

She now appears to be paying him back. She dismissed the documents case by ruling that the Attorney General lacked authority to appoint a Special Counsel. In making the ruling, she disregarded years of precedent and a landmark Supreme Court decision, United States v Nixon.

It was a wild ruling. She relied on the thinnest of reeds – a Clarence Thomas concurrence in the presidential immunity case just decided. That was a solo concurrence. In that case, Trump had not even raised the legality of the Special Counsel, it was not briefed and it was irrelevant to the decision. If there had been a case going forward (there is not), it is highly unlikely Cannon’s opinion would have survived scrutiny.

But still we are left with the reality that Jack Smith is dismissing the documents case because of the U.S. Department of Justice’s longstanding policy against prosecuting a sitting president. It is a policy choice not based on any law or binding precedent. The argument is that such a prosecution would impede the president’s ability to govern. As with the Supreme Court’s immunity decision, hobbling the President’s ability to act in office is the big concern.

Contrary to most legal observers, I think the Department of Justice (DOJ) policy against prosecuting a sitting president is ill-advised. Our Founders did not want a monarch. Americans fought the Revolutionary War against King George III to prevent being subjected to rule by a tyrant. Now we have a situation where we have an authoritarian president who has placed himself above the law.

Where are our much-vaunted checks and balances? Who will rein in a rogue president? Where is the accountability if the President behaves criminally? It would appear the President-elect has a blank check to break any law and the Supreme Court says that is fine.

Where the DOJ went wrong in their memo about not indicting a sitting president is their under-estimation of the human capacity for malevolence. The drafters of that policy no doubt assumed, whether the candidate was Republican or Democratic, that the President would abide by our constitutional system. They failed to consider the possibility Americans could elect a fascist who had little use for laws or constitutions. They remained moderate institutionalists unable to anticipate authoritarianism.

As I believe Judge Chutkan wrote, presidents are not kings. They should not be above the law. No one should be. Stealing federal documents is certainly not the biggest of Trump’s crimes but I would suggest that tolerating this violation sets a dangerous precedent. We can expect many more such violations in the years ahead.