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.

Part of the conservative counter-revolution against wokeism is un-learning lessons learned about racism in America from the civil rights movement and black liberation movement of the 1960’s and 1970’s. In that era, the systemic roots of racism and the black historical experience in America were laid bare. A better understanding of American history, that included an understanding of racism, emerged.

Now we have conservatives consistently attacking things like Diversity, Equity and Inclusion (or DEI) programs, the 1619 Project and critical race theory. This is an effort to turn back the clock and to restore white supremacy.

When the door plug blew out of an Alaskan Airlines plane, billionaire Elon Musk, without any proof, blamed the incident on Boeing’s diversity programs. Boeing made the plane in question. Musk said:

“Do you want to fly in an airplane when they prioritized DEI hiring over your safety? That is really happening!”

Of course, that is not happening. No connection has been established between the door plug blowing off the Boeing 737 Max 9 and any diversity program. A far more persuasive case can be made that corporate greed, the lack of regulation and the pressure to prioritize profits over quality were behind the incident.

When a wheel came off a Boeing 757 just before take off on a Delta flight on January 20, Donald Trump Jr. said,

“I’m sure this has nothing to do with mandated Diversity, Equity and Inclusion practices in the airline industry!!!”

Trump Jr. has also cited no evidence. It is enough to plant the idea that diversity initiatives are compromising safety. Trump Jr. was followed by far-right leader Charlie Kirk saying, “I’m sorry. If I see a black pilot, I’m going to be like, “Boy, I hope he’s qualified”.”The racism could not be clearer: for Kirk, being black equates with incompetence.

Kirk obscures the deeper problem which is that the airlines have done a lousy job with minority hiring. According to a 2022 report on the demographics of the airline industry, only 2% of pilots are black. Over the last ten years, the number of black pilots has fluctuated between 1%-2%. The problem isn’t incompetent black pilots – it is almost no black pilots.

Blaming DEI is not some accident. As the New York Times just exposed, it is part of a plan devised by conservative activists and academics to abolish DEI which they see as part of “the leftist social justice revolution”. They are about stigmatizing any idea perceived as left wing.

The Times showed how the anti-DEI movement was centered at a think tank, the Claremont Institute in California, which has close MAGA ties. Trump coup lawyer John Eastman hails from Claremont.

An association of Republican operatives, right wing philanthropies and donors and political groups have coordinated anti-DEI advocacy in multiple states including Alabama, Maine, Florida, Tennessee and Texas. They have exchanged model legislation and have gotten more than 20 states to pursue the banning of DEI. Texas has approved such legislation, removing DEI from all public institutions of higher learning.

Their argument is that racial diversity and DEI programs corrupt public education. These folks do not wear Klan robes but their arguments encapsulate America’s societal backsliding on racism. Feeling like America is moving backwards on race is not just subjective. Claremont Institute and others of its ilk are pushing backwards. In its decision on affirmative action, the U.S. Supreme Court is moving in the same backwards direction.

Possibly older readers who lived through the 1960’s will remember the Kerner Commission report. I mention it because it was such a significant signpost of the 1960’s. Following riots that broke out in cities all over America, President Lyndon Johnson created a National Advisory Commission on Civil Disorders led by Illinois Governor Otto Kerner. The report they produced became known as the Kerner Commission report.

The report examined the causes of racial unrest in urban America. It found white racism as the culprit leading to pervasive discrimination in employment, education and housing. The report famously concluded:

“Our nation is moving toward two societies, one black, one white, separate and unequal.”

Instead of heeding the recommendations of the Kerner Commission, white backlash led to the election of supposedly law and order candidate Richard Nixon with his southern strategy. The nation never listened to the Kerner Commission. Residential segregation remains to this day an overwhelming fact of life.across America as does school segregation. While the nation is more diverse, school segregation between black and white students has returned to 1960’s levels.

The re-segregation came after both the Nixon and Reagan administrations fought school desegregation plans. The federal courts, including the U.S. Supreme Court, failed to defend desegregation plans.

All the news is not bad, however. Black Americans are much better educated than they were in 1968. 90% of younger African-Americans have graduated high school compared to just over 50% in 1968. More than twice as many black students have college degrees as in 1968.

The educational gains have translated into some improvements in wages and wealth but the median white family has roughly ten times as much wealth as the typical black family. Blacks are 2.5 times as likely to be in poverty as whites. Police brutality and high levels of incarceration continue as a plague condition for black Americans.

As we approach black history month, intellectual honesty requires a recognition that, regardless of what conservatives say, white racism remains the same culprit it was in 1968. What’s different is even less willingness to face this truth. This was reflected in Nikki Haley’s statement to Fox News host Brian Kilmeade, “We’re not a racist country, Brian. We’ve never been a racist country”.

Before he was assassinated, Dr. King called the Kerner Commission report “a physician’s warning of approaching death, with a prescription for life”.

We remain an amnesiac society. The story we want to tell about American history is not remotely close to the truth. Any progress we make on race is followed by lengthy periods of regression. That was true after Reconstruction, after the civil rights movement and the deep freeze continues now.

The political willingness to create a desegregated, multi-racial democracy is lacking. Racial gerrymandering and voter suppression schemes are the norm while the U.S. Supreme Court presides over it all, weakening the Voting Rights Act. Only by facing and engaging the racism will we ever be able to transcend it.

My sister, Lisa Baird, was an immigration attorney. Before she died in 2009, she had a very active private practice in Philadelphia where she represented people who were seeking asylum and trying to avoid deportation from the United States.

Lisa had a wide variety of clients including a Ugandan child soldier, Salvadoran asylum seekers, victims of female genital mutilation, Vietnamese boat people, Japanese and Chinese restaurant workers and an Indonesian woman of Chinese ancestry who was persecuted for being ethnically Chinese and Christian in a society that was predominantly Muslim.

Earlier in her legal career, Lisa had worked for the Hebrew Immigrant Aid Society also known as HIAS. Historically HIAS had focused on helping Russian Jews who were trying to emigrate to the United States. Lisa played a role in moving HIAS toward representing a far wider client base. She had met with some resistance inside HIAS about the clients she was representing.

Readers may remember that the 2018 Pittsburgh synagogue shooter was obsessed with HIAS because it was Jewish and it helped refugees. Before his attack, the shooter posted on social media:

“HIAS likes to bring invaders in that kill our people. I can’t sit by and watch my people get slaughtered. Screw your optics. I’m going in.”

With the shooter in mind, I couldn’t help but think about my sister’s role in moving HIAS toward a goal of broader immigration representation. In his demented way, the shooter was talking about Lisa and others like her. The stories my sister told about her clients often had similar themes. Many of her clients had lived in the United States for decades without incident. Typically there was some crime or incident of bad judgment earlier in their life that came back to haunt their immigration case.

In hearing Lisa’s stories, I was always struck by the specificity and uniqueness of her clients’ situations. Her clients were often fully integrated into American life and far removed from earlier foreign residences. They were almost exactly like other Americans except for the matter of their immigration status. Who they got as a judge often made a big difference in their chance of success in their immigration case, Her clients wanted what other Americans wanted: a chance to live a good life, with their family.

Over the course of the last fifteen years, since my sister’s death, there has been a worsening in how immigration is talked about. What passes for public discussion is the opposite of the specificity that I learned from my sister. Immigrants are talked about as an undifferentiated mass. Rather than individuals with personal stories, they became a faceless horde and, without basis, they are blamed by politicians for the nation’s problems.

I would suggest the scapegoating of immigrants is rooted in racism. The MAGA narrative is the great replacement theory where black and brown immigrants are seen as replacing those Tucker Carlson calls “legacy Americans” which means white people. The false accusation is that somehow illegal immigrants will magically become eligible Democratic voters skewing the electorate away from the interests of white people.

Former President Trump referred to Haiti, El Salvador and African countries as “shithole nations” and he expressed a preference for immigrants from Norway. Trump baselessly disparaged Haitians saying “hundreds of thousands are fleeing in and probably have AIDS”. In December he said immigrants from South America, Africa and Asia are “poisoning the blood of the nation”. He has touted the Eisenhower-era Operation Wetback as a model he would emulate.

These racist comments are consistent with an immigration system that is institutionally racist. Its origins go back to the Chinese Exclusion Act in 1882. More recently, black and brown immigrants face disproportionate detention and deportation. We create more and more hurdles for Central Americans seeking asylum. The conditions of confinement in ICE detention facilities remain abysmal and inhumane. Trashy treatment is considered acceptable for people who are viewed as trash.

Lost is the fact that noncitizens are less likely to commit crimes than those born in the United States. The blame associated with immigrants is rooted in fear – not facts. Nor do we ever consider the American responsibility for why so many people are fleeing from Central America. As Douglas Massey, a professor at Princeton has written about Central American migration:

“ The migration from there is the direct result of U.S. interventions in the 1980’s. Back then, the U.S. intervened directly in El Salvador and Honduras, on the side of right-wing/military regimes, and the Reagan administration enthusiastically endorsed a similar government in Guatemala that carried out a genocide against indigenous people in the Mayan highlands.”

The awfulness of our treatment of immigrants was driven home by the recent deaths of three migrants, including two children, who drowned near Eagle Pass, Texas. The deaths were unnecessary. Texas state authorities blocked the U.S. Border Patrol from accessing 2.5 miles of the U.S.-Mexico border near Eagle Pass. They made a potential rescue impossible. The Department of Homeland Security issued a statement:

“The Texas governor’s policies are cruel, dangerous and inhumane and Texas’s blatant disregard for federal authority over immigration poses grave risks.”

This is a statement from the federal government – not advocates. Under Texas Senate Bill 4, the state is trying to usurp authority from the federal government even though it is well-settled law that immigration laws can only be enforced by the federal government. The Border Patrol has sole legal authority to search for noncitizens within 25 miles of the border.

Texas has been particularly vicious in installing concertina wire fencing on private property along the Rio Grande river. It has also installed a stretch of orange spherical buoys loaded with razor wire in the Rio Grande to deter and trap migrants trying to cross the river. Texas state troopers found a dead body lodged in the buoys last August.

The federal government had to sue at the Supreme Court to stop Texas’s ultra-aggressive anti-immigration initiatives and by a 5-4 vote the Supreme Court just blocked Texas. Texas Gov. Greg Abbott, along with other Republicans is using immigration as a wedge political issue. Democrats have only weakly responded. Too often border security is demagogued for political gain.

We are in one of those periods in American life where there is a widespread reluctance and refusal to recognize both the legacy of racism and its current incarnation. Racial denialism doesn’t serve America. It is almost delusional to see Republican primary voters in places like Iowa or New Hampshire cite border security as a major concern. This is not a problem at their doorstep.

The great majority of immigrants seeking refuge and asylum in the United States have compelling personal stories. No one would make the dangerous trek to our southern border if they didn’t have very good reasons. Rather than a Fox News stereotype, progress would be looking at those seeking entry into the U.S. as individuals with complex stories who deserve due process and an individualized determination on immigration eligibility.

One news story that failed to garner much traction over the last week or two was the House Democrats’ report on how, during the Trump presidency, his businesses obtained $7.8 million from foreign governments. This includes $5.5 million China spent at Trump Tower in New York and at Trump hotels in Washington DC and Las Vegas. Another $2 million came from Saudi Arabia and Qatar. The report indicates twenty countries monetarily fed Trump businesses during his presidency.

Democrats have demanded that Trump return the $7.8 million foreign governments paid his companies then.

The Constitution prohibits any officeholder, including the President, from accepting money, payments or gifts “of any kind whatever” from foreign governments unless the President obtains “the consent of Congress”. It is what is called the foreign emoluments clause. It is Article 1, Section 9, Clause 8 of the Constitution. The framers created this prophylactic rule to guard against foreign governments purchasing undue influence.

When he was asked about it on January 10, Trump responded that “it was a small amount of money” and “I was doing services for them…I don’t get eight million for doing nothing”. Trump never sought the consent of Congress. He never divested or put his businesses in a blind trust as advised by ethics experts. Although he said his sons managed his businesses, he retained ownership and control.

Trump’s violation of the Constitution’s emoluments clause couldn’t be any clearer. His businesses during his presidency accepted millions from foreign governments. Rep. Jamie Raskin (D-Md) commented:

“The governments making these payments sought specific foreign policy outcomes from President Trump and his administration. Each dollar…accepted violated the Constitution’s strict prohibition on payments from foreign governments, which the founders enacted to prevent presidents from selling U.S. foreign policy to foreign leaders.”

Saudi Arabia immediately comes to mind. The Crown Prince, Mohammed Bin Salman, had to try and overcome the vicious and disgraceful crime of assassinating the Washington Post journalist Jamal Khashoggi. What better way to curry favor with Trump than to throw money at his properties.

To date, there has been a failure of accountability around violation of the emoluments clause. This fits in with the more general failure of courts over the last 50 years to hold Trump accountable. In 2021, the U.S. Supreme Court dismissed two emoluments cases and declined to rule on them. In the next year we will see if this general failure of accountability continues or not.

The House Democrats had great difficulty even getting the information that was the basis for their report. They had to litigate to gain access to only a portion of Trump’s business records. Their report was not based on complete information so it is highly likely the amount of money Trump obtained from foreign governments during his presidency was higher. The House Committee did not receive documents regarding at least 80% of Trump business entities.

After the Democrats won the court battle for release of records, Mazars USA, Trump’s accounting firm, cut ties with Trump and his businesses. Mazars said it would no longer stand behind a decade of annual financial statements it had prepared. Then, when the Republicans won control of the House, they dropped the effort to force Mazars to produce documents about Trump’s business activities.

You could look at this history as an accounting firm not wanting to be part of a fraud followed by an effort by Republicans to cover up.

I think it is fair to say that Trump’s disregard for the emoluments clause showcases his utter contempt for the rule of law. His actions demonstrate that he doesn’t believe law applies to him. I believe he sees law as a nuisance to be circumvented.

The historian Ruth Ben-Ghiat has written that “the essence of authoritarianism is getting away with crimes”. Trump may have been the first president to conceive of the presidency as primarily a money-making opportunity for himself and his family. Because of his multiple court cases, he is constantly asking his followers for money and he is literally running to stay out of jail.

The Citizens for Responsibility and Ethics in Washington have reported that Trump’s son-in-law Jared Kushner and his daughter Ivanka Trump made between $172 million and $640 million in outside money during Trump’s White House years. The information comes from the couple’s financial disclosures. In addition, Kushner received $2 billion from the Saudi sovereign wealth fund six months after leaving the White House.

In her book, Strongmen, Ben-Ghiat argues “the core of the contract between the ruler and his enablers is the offer of power and economic gain in exchange for supporting his violent actions and his suppression of civil rights”. It seems undeniable that a significant chunk of Trump followers buy into his Big Lie of election fraud and his January 6 defense.

About strongmen like Trump, Ben-Ghiat goes on to say:

“They turn the economy into an instrument of leader wealth creation but also encourage changes in ethical and behavioral norms to make things that were illegal or immoral appear acceptable, whether election fraud, torture or sexual assault.”

That fits our former president to a T. Trump follows the ethically sleazy example of his former (now deceased) disbarred attorney, Roy Cohn. When attacked, always counter-attack immediately. Charge your opponent with whatever you have done. No matter how bad things get, always claim victory and never admit defeat.

Ethics is not a word that exists in the Trump vocabulary. He uses lawyers to run out the clock to avoid accountability. Emoluments was just something that got in the way of the money making. If Trump wins the presidency again, expect an ethical free-fall as he will undoubtedly try to cash in to the max.

Part of the legacy of racism and white supremacy in America is the failure to recognize and acknowledge key black leaders in the black freedom struggle. Paul Robeson is one such leader. In my own informal poll of friends, I have found many people have not heard of him.

A powerful singer, an accomplished actor, an extremely versatile athlete and a hardcore activist, Robeson was all of those. In the 1930’s-1940’s he was a central figure standing up for multi-racial democracy and opposing fascism. His story is very well told in a new graphic biography, Ballad of an American. The superb artwork and text are done by Sharon Rudahl and Paul Buhle and Lawrence Ware did editing.

Robeson was a lion of the left, defending the interests of working people nationally and internationally. His activism spanned diverse causes. He was intensely committed to civil rights at home. He supported Spanish Republicans in the Spanish civil war as well as Welsh miners in England. He spoke at innumerable benefits and rallies.

From the very beginning his story was remarkable. He was born in 1898 in Princeton, New Jersey. His father William was a slave and fled north on the Underground Railroad. He later became pastor of a black Presbyterian church in Princeton. William Robeson lost his job for speaking out about lynching and the family had to move to Somerville New Jersey, then a less prosperous, more working class community.

When he was six, his mother died tragically in a house fire. After working as a coachman and an ash hauler, William secured a new parish. Paul received much help growing up from friends connected to his father’s church. He grew up in the church, assisting his father and even giving sermons when his father was away.

Paul was an outstanding student in high school. He excelled in everything he tried. He was a soloist in his high school glee club. He played Othello in a class parody of Shakespeare’s play. He played baseball, basketball and football. He was especially talented at football, playing fullback.

Robeson won a four year full scholarship to Rutgers University. He was able to win the scholarship because he achieved the highest score on a competitive state wide exam. He went on to become valedictorian at Rutgers and he made Phi Beta Kappa. He was one of two black students on campus.

He played college football at Rutgers. He faced intense racism from fans and opposing players who frequently tried to hurt him. Some Southern colleges refused to play a team with a black athlete. When Rutgers played in the South, he had to house and eat apart from the rest of the team because of segregation. Paul played four sports in college, winning 15 varsity letters.

Paul wrote his senior thesis on the unrealized promise of the Fourteenth Amendment. He wrote:

“We of the less favored race realize that our future lies chiefly in our own hands..Virtues of self-reliance, self-respect, perseverance and industry…Black and white shall clasp friendly hands in consciousness of the fact that we are brethren and that God is the father of us all.”

After college, Paul attended Columbia Law School. To earn money, he played pro football in the newly formed National Football League. Both his football career and his law career were cut short because he started acting and singing.

He got a stage opportunity performing in two Eugene O’Neill plays for the Provincetown Players. He got rave reviews for his roles in All God’s Chillun Got Wings and The Emperor Jones. He also started performing solo concerts singing spirituals. For anyone who has never heard Robeson sing, his songs are easily accessible on the internet. I would recommend Swing Low Sweet Chariot and Ole Man River.

Robeson also performed in Oscar Hammerstein and Jerome Kern’s Showboat. He had a beautiful voice. Showboat was such a success that it led to other opportunities. He again played Othello. He started recording songs and he played in movies.

In that era, black performers’ opportunities were narrowly circumscribed because of racism. Blackface minstrel shows were the norm and had been the norm for a long time. Robeson broke out of that racist framework to become widely popular. In that endeavor he got great support from his wife Eslanda and his accompanist for four decades, Lawrence Brown.

It was during the presidency of Franklin D. Roosevelt that Robeson achieved his greatest popularity. In the aftermath of the Great Depression, the world faced the threat of looming fascism. Americans of almost all political stripes formed a Popular Front to oppose fascism. Many people came to recognize the danger fascism represented. Robeson performed a song, Ballad for Americans, that became an anthem for these Americans.

The song was written for the government’s Works Progress Administration. Robeson sang it in November 1939 on a national radio broadcast. It was listened to widely. Robeson toured the country, finishing with a performance at the Hollywood Bowl. His performance garnered the largest crowd ever at that venue.

I think Robeson’s example is directly relevant to our time. We now face a fascist threat from the candidacy of Donald Trump and his MAGA movement. All Americans, whether conservative, moderate, liberal or progressive, need to unite to protect our democracy and the rule of law. The example of the Popular Front that existed during FDR’s time is a good model to emulate.

After World War 2, Robeson met with President Harry Truman and urged Truman to pass anti-lynching legislation. Truman told Robeson it was not the time. The racism in America was so deep-seated that Truman could not break with Southern Democrats who remained segregationist.

After that, Robeson experienced reversals of fortune, During the McCarthy period, Robeson was redbaited, blacklisted and the government revoked his passport. He remained widely popular in Europe but he was not allowed to leave the United States. The House Un-American Activities Committee or HUAC called Robeson and his wife to testify. In May 1956, Robeson told HUAC:

“Because my father was a slave and my people died to build this country and I am going to stay here and have a part in it just like you. And no fascist-minded people will drive me from it. Is that clear?

In June 1958, the Supreme Court restored Robeson’s passport. Justice William O. Douglas wrote, “the right to travel is one of a citizen’s inalienable rights”.

Paul Robeson opened the door for later generations of African American artists. He boldly and bravely opposed racism in a time before there was a mass civil rights movement. Robeson was a symbol of hope and a bulwark for the ideal of racial egalitarianism.

In understanding what makes Donald Trump and his MAGA movement unique, I would argue it is both their incitement to violence and their dehumanization of opponents. That rhetoric echoes fascist tradition that sees violence as necessary and a virtue. Fascists build their community by identifying and vilifying those seen as enemies.

Trump’s speeches and his social media tweets are an effort to change and normalize the perception of violence among his followers. He is trying to remove hesitation about resorting to its use. Part of his effort is seeing those who oppose him as sub-human. Trump is attempting to train his followers to see violence as positive.

The examples to cite are numerous but I would begin with his recent watershed remarks about vermin and immigrants poisoning the nations’s blood. This is another step down the dehumanization highway. That Hitler-type language reverberates back to 1930’s-1940’s fascism. It is a recognizable moment that should cause everyone pause. Talking about any people like that is sick and morally indefensible.

For those who think I am exaggerating, Trump’s words speak for themselves. Remember January 6:

“If you don’t fight like hell, you won’t have a country any more.”

Trump has called for the execution of General Mark Milley, former Chairman of the Joint Chiefs of Staff. He has urged police to shoot shoplifters. He has mocked the vicious assault on Nancy Pelosi’s 82-year old husband that fractured his skull. He had previously called for shooting illegal border crossers in the legs. Trump and his minions matter of factly discuss deporting millions without due process and putting huge numbers of immigrants in vast detention camps in south Texas.

Part of the dehumanization is the name-calling and vitriolic attacks on enemies. Trump calls Jack Smith “deranged” and “a psycho who looks like a crackhead”. He labels New York Attorney General Letitia James “a monster” and “a racist”. He says the judge in his New York civil fraud trial, Judge Arthur Engoron, is “deranged” and should be disbarred and criminally prosecuted.

Possibly these statements are in response to the pressure he is currently under but the pattern of dehumanization is long-standing. In his January 2, 2021 conference call to Georgia Secretary of State Brad Raffensperger where he wanted 11780 votes found, Trump mentioned Ruby Freeman, a black election worker, 18 times. He repeatedly slandered Freeman and her daughter Shaye Moss, accusing them of election crimes. Trump called Freeman “a professional vote scammer and hustler”.

Trump’s false accusations, along with Rudy Giuliani’s, terrorized the two women and turned their world upside down. Following Trump’s cue, Republican activists threatened the womens’ lives, forced Freeman to flee her home, close her business and go into hiding. The two women received threatening emails, letters and social media attacks filled with violent and racist content. In her testimony to the January 6 Committee, Freeman described the type of threats received:

“Kill yourself now so we can save ammo” read one message, Another read:

“I hope the Federal government hangs you and your daughter from the Capitol dome you treasonous piece of shit! I pray that I will be sitting close enough to hear your necks snap.”

I see the attacks on Ruby Freeman and her daughter as the prototype of the MAGA modus operandi. With Trump’s words, he unleashes the attack dogs. Then he chooses to ignore the inevitably horrible consequences of his remarks.

Since Trump emerged in 2015-2016, dozens of his unhinged supporters have carried out acts of violence. Think Cesar Sayoc. More recently, I think of the Colorado Supreme Court justices who are now receiving a barrage of death threats because of their opinion on the 14th amendment case barring Trump from being on the Colorado ballot. Just to give a flavor of the messages received:

“All fucking robed rats must fucking hang.”

“This ends when we kill these fuckers.”

This is no different than the treatment meted out to other judges and prosecutors who have engaged Trump-involved cases. As John Miller of CNN has said, Trump has been pouring gasoline on the fire. His threats against judges have created a much less secure judiciary. This ties into Trump’s more general responsibility for increased hate crimes. Words have an effect. As the author of The Undertow, Jeff Sharlet, has observed, blood and gore play a big role in Trump speeches at his rallies.

After January 6, 2021, Sen. Mitt Romney had to spend $5000 a day for security for his family. Liz Cheney said there were members of Congress who told her they were afraid for their own security. They voted against impeaching Trump out of fear of their own lives. This is the way fear and intimidation work to undermine democracy.

Many election workers have quit because of the MAGA threats. After the 2020 election, Reuters documented more than 900 threatening and hostile messages to election administrators and staff in 17 states. Almost all the threats were related to Trump’s baseless claims of a stolen election. It is no wonder so many election workers have quit because of the perceived danger.

Every fascist movement is different and has its own national characteristics. Trump is focused on revenge because he cannot stand being a loser. He talks about putting Joe Biden in jail along with others who have crossed him like Bill Barr, John Bolton, Barack Obama and Hillary Clinton. As his former White House Chief of Staff, Gen. John Kelly has said Trump has nothing but contempt for democratic institutions and the rule of law.

Fascists came to power in Italy by killing off and intimidating members of the Socialist Party which was the largest opposition party. Between 1919-1922, the fascists in Italy killed thousands. A similar process occurred in Hitler’s rise to power in Germany. In 1933, the Nazis consolidated his power by murdering leftists, social democrats and Jews.

Whatever happens in the 2024 election, we can be certain that Trump will not accept the result unless he wins. Trump is running to stay out of jail. What level of MAGA violence will come into play is a good question but based on history it is unrealistic to expect him to accept an unfavorable result peacefully.

I cannot help but think about Maya Angelou’s famous quote: “When someone shows you who they are, believe them the first time.” No one can predict the future but all who care about keeping democracy should be very worried.

Back in November the U.S. Supreme Court announced a new Code of Conduct. The announcement came in response to mounting criticism of the unethical behavior of certain justices, particularly Clarence Thomas. His accumulation of expensive unreported gifts from billionaire patrons had to be an embarrassment to all the other justices.

The Supreme Court’s announcement momentarily raised expectations but it turned out the new Code of Conduct was a triumph of form over substance. The code contained no enforcement mechanism. There is no way for anyone to invoke a code violation. The code offers only the appearance of accountability.

The ethical issues that are upcoming are anything but inconsequential and they locate Justice Thomas at the center of controversy. At issue is whether he should recuse from January 6-related cases. It appears that there will be three January 6-related cases on the High Court’s docket and there may be more.

There is the matter of Trump’s claimed immunity from prosecution as a former President. Then there is the question of whether he is disqualified from running for President because of the 14th Amendment prohibition the bars officials who have engaged in insurrection from running for office. Finally there is the case of Fischer v United States, where a man charged with offenses related to the January 6 assault on the Capitol asks the Court to dismiss the charge he obstructed an official proceeding.

Ethical issues are raised in all three cases because of the January 6 role of Justice Thomas’s wife, Ginni Thomas. Ms. Thomas was an active participant and a key behind-the-scenes player in the insurrection. She attended the January 6 Stop the Steal rally although she did not enter inside the Capitol after things got out of hand. She told the January 6 Committee that she still believed the 2020 election was stolen from Trump.

After the election, Ms. Thomas texted Mark Meadows, Trump’s Chief of Staff, that he should contest the election result, accusing Biden and the Democrats of “attempting the greatest heist of our History”. On the morning of January 6, she wrote her Facebook followers, “Love MAGA people” and “God bless each of you standing up or praying”. Ms. Thomas had texted:

“Biden crime family and ballot fraud co-conspirators (elected officials, bureaucrats, social media censorship managers, fake stream media reporters etc) are being arrested and detained for ballot fraud right now and over coming days and will be living in barge off GITMO to face military tribunals for sedition.”

The New York Times reported Ms. Thomas played a peacemaking role between feuding factions of January 6 rally organizers. She emailed state legislators in Arizona and Wisconsin about creating false slates of electors. She co-signed a letter in December 2021 calling for House Republicans to expel Representatives Liz Cheney and Adam Kinzinger from the Republican conference for joining the January 6 committee.

There is a federal statute, 28 USC 455, which requires judges to disqualify “when their impartiality might reasonably be questioned”. Justice Thomas has a clear conflict of interest because his wife has aligned with one side of the January 6 fight. She could possibly be a witness. She has a material stake in how the Court decides.

Both conflict of interest and the appearance of impropriety are implicated. Justice Thomas would have an interest in insuring the exoneration of his wife. While she is not a January 6 defendant herself, she was an accomplice in various aspects of the Trump multi-pronged insurrectionary schemes. As Sen. Dick Durbin recently said:

“There are so many unanswered questions about the relationship of the justice and his family with the Trump administration that I think in the interests of justice, he should recuse himself.”

Under the Court’s new Code of Conduct there is a judicial canon about avoiding the appearance of impropriety. There is a section under disqualification that says a justice should disqualify himself where his spouse has an interest that “could be affected substantially by the outcome of a proceeding”.

It is not an ethical close call to see that Justice Thomas has no business ruling on January 6 cases. To his credit he did recuse from one case where his former law clerk, John Eastman, was a defendant but there is not yet any indication he will recuse from other January 6 cases. He has already participated in some, including a solo dissent in a case where he unsuccessfully tried to block the January 6 committee subpoena for presidential records, including records that included his wife’s activities.

There are many unexplored ethical issues around Ginni Thomas and her husband. She has received many thousands of dollars from conservative dark money interests. Some of these funders have had cases before the Court. For example, she earned more than $200,000 in 2017-18 from the anti-immigrant Center for Security Policy. Their founder, Frank Gaffney, signed an amicus brief in Trump v Hawaii, a case that allowed Trump’s Muslim ban to move forward. Thomas cast the deciding fifth vote.

Unfortunately there is no requirement that a spouse of a justice who owns a firm must reveal the identities of her clients which could reveal potential conflicts of interest. Because of that reality there is no way to know if a spouse’s business venture is serving as a backdoor to payments to a justice.

We now do know that Justice Thomas has been subsidized by ultra-conservative billionaires who were afraid he might leave the Court. ProPublica reported that Thomas received trips and vacations he failed to report which totaled in the millions of dollars. Thomas had been in deep debt in his early years on the Supreme Court.

Justice Thomas stands as the best example of the failure of ethical self-policing. When left to his own devices, misconduct ensued. There is an old judicial maxim “No man shall be a judge in his own cause”. Where Ginni Thomas and January 6 are concerned, that is Clarence Thomas.
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