Jonathan P. Baird

I wanted to post some poems that evoked Lisa to me.

By Emily Dickinson

I’m nobody! Who are you?
Are you – Nobody – too?
Then there’s a pair of us!
Don’t tell! They’d advertise – you know!

How dreary – to be – Somebody!
How public – like a Frog –
To tell one’s name – the livelong June –
To an admiring Bog!

For the grave of Li Po by Bertolt Brecht

When I was alive we sat in the hollow of the park
Talking of this and that, but mostly of you.
You took me by the hand and led me to the temple in the wood Where we made offerings, mostly for you.
In the evenings we sat by the fire
I fed you with plum cakes and you sang.
Later then we lay back, gazing at the moon
And I composed verses, mostly about you.
Came the first light of day and the cranes screeched
And on their long legs stepped out through the marshes.
We took tea under the cherry tree
Then the neighbors came, mostly to see you.
Now where I lie neither fire nor moon can reach me.
I cannot hear the cranes nor your singing anymore.
Do you not have a single rice cake you might bring me?

And in your country? By Bertolt Brecht

In our country, at the turn of the year
Or when a piece of work is done, or an anniversary of a birth We share our wishes for happiness and luck
For in this country the pure of heart
Need luck.

He who harms no one
In our country will end up in the gutter
And fortunes
Are only to be had by villainy.

To come by a meal at midday
Calls for the courage
On which elsewhere empires are founded.
No one, unless they’re prepared to look death in the face
Can succour those in misery.

He who speaks untruths is borne in triumph through the crowds Whereas he who speaks the truth
Needs a company of bodyguards
But will find none.

Brother, now’s the time…. By Bertolt Brecht

Brother, now’s the time
Brother, hold the line
Pass the invisible flag down through the ranks!
In dying no different from when you were living
You’ll not give in, comrade, there’s no forgiving.
Today you’re defeated, the others have won
But the war only ends when the last battle’s done
But the war only ends when the last battle’s done.
Brother, now’s the time
Brother, hold the line
Pass the invisible flag on through the ranks!
Oppression or justice, the balance is shifting
We’ll throw off our chains and the clouds will be lifting.
Today you’re defeated, the others have won
But the war only ends when the last battle’s done
But the war only ends when the last battle’s done.

As a Jewish person, I am probably more paranoid than the average person about the threat of the advance of fascism and authoritarianism in America. My antenna are usually up. Still, I did not expect to see a “legal” roadmap to outline how to make it happen here.

The conservative law professor, John Eastman, part of the stable of Trump lawyers, laid it out on a silver platter. His plan, coordinated with Donald Trump, was to maintain our former President in the White House against the will of the voters.

Eastman wrote a memo, titled January 6 scenario, about how to legitimate a coup through six easy steps. Bob Woodward and Robert Costa surfaced the memo in their new book, Peril. The document was subsequently obtained by CNN.

Eastman’s memo proposed that on January 6, when certifying the vote tally, Vice-President Mike Pence should refuse to count votes in seven battleground states where fringe groups put forward an alternative slate of electors. Even though Trump lost those seven states, Eastman argued that Pence had the authority to reject electors from those states.

Eastman wrote that when Pence got to counting Arizona, he could announce that he had multiple slates of electors and he was deferring decision until he finished counting the other states. Eastman wanted Pence to do that in those seven states Biden won.

At the end, Pence would announce that pursuant to the 12th amendment, he would count the electors only in 43 states. Counting these states, Trump would have 232 votes and Biden would have 222, resulting in a Trump victory.

Since Eastman knew Democrats would howl and would say 270 electoral votes are required for election, he had a back-up plan. Under the 12th amendment, since no candidate hit 270, the matter would go to the House of Representatives with each state getting one vote. Republicans currently control 26 of the state delegations and Democrats control 24. This would also result in a Trump victory.

In his memo, Eastman wrote that Vice-President Pence was the ultimate arbiter of electors. In effect, he (Pence), rather than the voters, could determine who won the election. Eastman did not want Pence to ask Congress or the Supreme Court whether he could take these actions. He believed a stalemate could work to Republican advantage and would allow state legislatures to weigh in and support alternate electors.

Eastman is not an unconnected lawyer. He had clerked for Justice Clarence Thomas. Trump had seen him on FOX, arguing a very expansive view of presidential power and Trump liked what he heard. Eastman has professional credentials. He had been a law school dean and he was a leader in the Federalist Society.

He was well-known both for anti-LGBTQ views and for penning an article in Newsweek suggesting that Kamala Harris could not legally become Vice-President because both her parents were not born in the United States. Eastman believes Trump could use his executive authority to impose limits on birthright citizenship, the concept that anyone born in the U.S. is automatically a citizen.

Before the mob marched on the Capitol on January 6, Eastman appeared onstage next to Rudy Giuliani. At the rally, Eastman said “We know there was fraud” and “dead people voted” in the 2020 presidential election. He said voting machines contained a “secret folder of ballots”, challenging “the very essence of our republican from of government”. He told the crowd of angry Trump supporters that the election had been stolen.

Eastman asked Pence to delay the Electoral College certification vote to let state legislatures look further into the election.

Trump tried hard to persuade Pence to carry out Eastman’s scheme. He had told Pence:

“You can either go down in history as a patriot or you can go down in history as a pussy.”

Pence was conflicted. He famously called former Vice-President Dan Quayle, a fellow Hoosier, to seek advice. Quayle nixed the idea that Pence could exclude electoral votes.

The New Republic’s Matt Ford described Eastman’s memo as not simply unconstitutional but anti-constitutional. It is preposterous to believe that the Founders intended for vice-presidents to be able to overturn presidential elections, especially on false grounds. The American people overwhelmingly elected Joe Biden by over seven million votes in a free and fair election. Trump’s Big Lie of election fraud has been conclusively refuted by over 60 courts.

The Republican game plan moving forward appears to be voter suppression, installing Trump partisans in electoral positions in battleground states, threatening non-partisan election workers out of their jobs, more gerrymandering and continuous repeating of the Big Lie. They want to make it possible for only one political party to exercise political control. Eastman’s scheme fits into that agenda.

Many have said the January 6 insurrection was a dress rehearsal but I think Eastman’s memo points to something even more dangerous. He is promoting a supposedly legal means to subvert democracy. There is no need for a violent coup when you can make it look legal.

We were saved in 2020 because Republicans did not have control of Congress. Does anyone doubt that if they had the majority, the Republicans would not have gone along with Eastman’s scheme? This is a party defined by dishonesty and lust for power.

The 2024 election looms and Eastman’s memo points to how a coup could be successfully conducted even if Republicans lost another election. The Trump forces just need to place more loyalists in key electoral positions. If ruling Republican legislatures do not like how people in their state voted, they could invalidate those votes. While doing this, they will keep talking about voter fraud and election integrity.

The baseless claims of voter fraud have a very detrimental effect on democracy. They make more people lose faith in democratic elections, laying the foundation for autocracy.

It is hard not to think about the German example of how that nation transitioned to fascism. After an unsuccessful coup (the beer hall putsch), Adolf Hitler decided on a legal path to gaining power. Using the stab-in-the-back myth and the death of Horst Wessel, a fascist martyr, Hitler manipulated the masses. By 1932, the Nazis had become the largest political party. The conservative elite supported Hitler’s rise to power, wrongly thinking they could control him.

The events of January 6 are the equivalent of the beer hall putsch and Ashli Babbitt is our Horst Wessel. Our authoritarians intend to control the voting process so that one party has a huge edge. Just as happened with the conservative elite in Germany, the Republican Party establishment shamefully goes along with the anti-democratic agenda as they see Trump as necessary for their return to power.

A bi-partisan group of former judges, lawyers and officials called the States United Democracy Center has filed a complaint with the California Bar Association asking for an investigation of Eastman. When lawyers violate their ethical obligations by making false claims of election fraud, they have engaged in professional misconduct and should be subject to disciplinary proceedings.

Eastman’s argument that this is about his free speech rights rings hollow. What this is about is the undermining of free and fair elections and dismantling the underpinnings of constitutional government.

The saga of Attorney Steven Donziger continues and the news is not good. On October 1, New York Federal Judge Loretta Preska sentenced Donziger to six months in federal prison for a misdemeanor charge of criminal contempt. This was the maximum penalty allowed.

This is on top of the 787 days Donziger has already spent under house arrest while being forced to wear an ankle bracelet.

The Court has additionally imposed millions of dollars in fines and court costs against Donziger. The Court already let Chevron swoop into Donziger’s bank accounts and take his life savings to cover Chevron’s attorney fees. Chevron has another pending motion to make Donziger pay another $32 million in their attorney’s fees. The Court also allowed Chevron to place a lien on Donziger’s apartment in Manhattan where he lives with his family.

The original trial judge on the RICO case, Judge Kaplan, orchestrated Donziger’s disbarment as a lawyer without a hearing where he could present factual evidence. Donziger now has no means to earn income in his profession.

If there is anything else that Chevron and their favorite judges could do to torture Donziger, it is hard to imagine.

I previously wrote about Donziger and Chevron but just to refresh recollection: Donziger is a human rights and environmental lawyer. His crime is that he was too successful in suing oil companies. On behalf of the indigenous people of Ecuador, Donziger and his legal team won an epic multi-billion dollar judgment against Chevron for their extensive pollution of the rain forest.

Chevron (previously Texaco) had discharged 16 billion gallons of toxic waste into Ecuador’s rivers, groundwater and farmland. Now Chevron, rather than paying the court judgment, is making Donziger pay.

Just before Judge Preska sentenced Donziger, the United Nations Commission on Human Rights, the top human rights legal body in the world, issued a ruling in favor of Donziger. The U.N.’s Working Group on Arbitrary Detention called Donziger’s already over two year home detention “appalling” and said it violates international law. The U.N. opinion said the judges in this case displayed a “staggering lack of objectivity and impartiality” toward Donziger.

The opinion noted:

“The charges against and detention of Mr. Donziger appears to be retaliation for his work as a legal representative of indigenous communities as he refused to disclose confidential correspondence with his clients in a very high profile case against multi-national business enterprise.”

The U.N. Working Group found that Donziger was a “human rights defender” and that his treatment violated both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Taking into account all circumstances, the U.N. Working Group wrote that the “appropriate remedy would be to release Mr. Steven Donziger immediately and accord him an enforceable right to compensation and other reparation in accordance with international law”.

No lawyer has ever been charged with criminal contempt for seeking judicial review of a civil discovery order. For the level of offense, no lawyer in New York has ever served more than 90 days and that was in home confinement.

The Court has wanted Donziger to turn over all his electronic devices, compromising his clients’ privilege. It is worth going back to a lawyer’s ethical duties under the Model Rules of Professional Conduct, the gold standard for lawyers. Rule 1.6(a) states, in relevant part:

“A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.”

It is not an exaggeration to say that release of confidential client information could be dangerous for Donziger’s clients. Killings of environmental activists resisting extractive industries has been on the global upswing. Donziger has made clear he would turn over his electronic devices once a protocol is worked out that protects privilege.

Stepping back from the case, some observations are required. In Donziger’s case, the Court has clearly lost its way. A pro-corporate bias has corrupted the proceedings. The penalties imposed against Donziger are wildly excessive and not commensurate with his actions representing indigenous Ecuadorans.

The maximum penalty is six months’ imprisonment. Donziger has already served the maximum penalty more than four times over. The Court is acting like the home confinement was nothing. Under international law, house arrest counts as detention. Donziger has no criminal record. He has a history of good deeds as a lawyer. The U.N. identifies him as a “human rights defender’.

When Judge Preska sentenced Donziger, she brushed over the U.N. opinion. She crassly said,

“It seems that only the proverbial two-by-four between the eyes will instill in him any respect for the law.”

Donziger has two weeks to appeal Judge Preska’s order that he be sent immediately to jail. He is appealing. Judge Preska denied Donziger bail claiming he posed a flight risk. Donziger told the journalist Chris Hedges:

“What Judge Preska is trying to do is force me to serve the entirety of my sentence before the appellate court can rule. If the appellate court rules in my favor, I will still have served my sentence, although I am innocent in the eyes of the law.”

In a perverse way, this case illustrates our underlying climate change reality. A multi-national fossil fuel company rapes the environment. When indigenous people who were victimized seek justice, a pro-corporate judiciary sides with the environmental rapist and brutally punishes the victims’ advocate.

The Intergovernmental Panel on Climate Change has made clear that climate change is here and it is caused by fossil fuels. Many young people suffer climate anxiety because humanity has failed to respond. Donziger’s case is a perfect example of why so many have lost faith in the system.

Has any country in the world suffered more than Haiti? It is the Job of nations. Earthquakes, tropical storms, gang violence, political assassinations, official corruption and extreme economic inequality are all part of the Haitian picture.

The 2010 7.0 magnitude earthquake alone killed 100,000 Haitians and left hundreds of thousands homeless. The international response exemplified what Naomi Klein calls “disaster capitalism”. The pursuit of profit by foreign contractors, greedy businesses, and NGOs’ took precedence over the survival needs of the Haitian people. Increasingly, Haiti is divided between a small elite class of the wealthy and impoverished masses.

Most recently we have observed the spectacle of horse-mounted Border Patrol agents wielding whips while rounding up Haitians who were crossing the border with Mexico to seek asylum in the United States. The Biden Administration is expelling and deporting many of these migrant families by flying them back to Haiti. Considering the arduous and dangerous journey, it must be a bitter pill to be returned to a place left because it was deemed impossible to stay.

I think it is fair to say that where Haitians are concerned, the image Americans typically get is one of desperation and absolute neediness. That image needs to be reconsidered by injecting a sense of historical perspective.

Americans owe a large and unacknowledged debt to the Haitian people. The Haitian revolution 1791-1804 played a critical role in early American history and in the abolition of slavery. It helped protect America from domination by both the French and the British who had imperial designs on our country. Both had expansionist empires.

The story is little known. The Haitian revolution followed on the heels of both the American and French revolutions, was inspired by both, and it stands as the only successful slave revolution in modern history. It was the largest slave revolt since Spartacus’ unsuccessful revolt against the Roman Republic 1900 years earlier.

The Haitian revolution shocked white supremacists and refuted notions of black inferiority. During the revolution, the Haitians defeated colonial militaries from Spain, Britain and France. The revolution was led by Toussaint Louverture, a former house servant, and Jean-Jacques Dessalines. Both were formidable military strategists.

Prior to the revolution, Haiti, known as Saint-Domingue, was a nation of 500,000 African slaves, 32,000 whites and 28,000 free Blacks. Saint-Domingue was the most profitable French colony and its wealth came primarily from sugar plantations worked by slaves. The French slavemasters were infamous for their extreme cruelty using whipping, castration, and burning to maintain iron discipline over the slaves.

The slaveholders worked slaves as hard as possible while providing a minimum of food and shelter. The life expectancy of slaves was very short. Fifty percent of the slaves in Haiti were dead within a year of arrival on the island. Many died from diseases like yellow fever. The slaves had no rights.

In 1802, when Napoleon sent his fleet to regain control of Haiti he wanted to re-establsih the French empire in the Caribbean. He ultimately desired to use Louisiana as a supply station for French colonies.

When the French were defeated by the Haitians, Napoleon had to give up his dream of empire. After losing a fortune in the conflict, Napoleon was desperate for money. Napoleon sold the Louisiana territory to the United States for 68 million francs, the equivalent today of $237 million. The Louisiana Purchase was a result of his defeat by the Haitians.

The Haitian revolution proved to be a roadblock to France, scuttling Napoleon’s expansionist dreams. The Haitians kept America free from French domination. Americans bought the right to contend with Native Americans in their pursuit of western expansion.

The Haitian revolution was also a major impetus for the abolition of slavery. In 1793, the Haitian revolutionary movement forced a decree abolishing slavery The decree was confirmed in Paris in 1794 by the National Convention which then ended slavery in the French empire. Thousands of white people fled Haiti for the U.S..

While it is difficult to attribute particular American slave revolts in the early nineteenth century to the Haitian revolution, there is no doubt that the revolution did act as inspiration for slaves. The Haitian revolution was widely reported. The ruling class in America saw Haiti as a dangerous example for U.S. slaves. Southern slaveholders actually worried that armed Haitians might land in the southern U.S. and launch attacks to free slaves.

The spectre of slave insurrections haunted the imagination of Southern slaveholders. And they had good reason to fear. Slave insurrections like the 1811 German Coast Uprising in Louisiana and Denmark Vesey’s aborted uprising in 1822 provoked Southern paranoia.

The British were also very concerned that the success of slave revolts would inspire insurrections in British Caribbean colonies.

As President, Thomas Jefferson, a Virginian and a slaveowner, refused diplomatic relations with Haiti’s new government and cut off trade with the country. He feared the Haitian revolution would spread to the United States. The United States did not extend diplomatic recognition to Haiti until 1862.

Before he died, Frederick Douglass described the Haitian revolution as “the original pioneer emancipator of the nineteenth century”. It posed a “threat to all slaveholders throughout the world” and “her very name was pronounced with a shudder”.

The Haitian revolution showed American abolitionists that a new world beyond slavery was possible. It was a tremendous shot in the arm for abolitionists everywhere. Part of the debt Americans owe Haiti is a moral one. Slavery is one of the two major stains on America’s conscience. Haiti showed by example that we did not have to live compromised by a moral atrocity.

When we see pictures of desperate Haitians now seeking asylum, maybe we should think about the history and what we owe the Haitian people. We should also consider that much of Haiti’s poverty was imposed by French colonialism. In 1825, the French forced Haiti to pay reparations (the equivalent of $21 billion) to the enslavers in exchange for recognition. The debt was crushing and contributed to long-term poverty for the Haitians.

We are still seeing the Haitian refugees through racist eyes. Rather than summary deportation, the Haitians deserve due process and a right to a hearing to make their asylum claim. Denying their right to seek asylum in the U.S. is in violation of both domestic and international law. Under the Refugee Act of 1980, those who arrive at the border are entitled to seek asylum if they can demonstrate a “well-founded fear of persecution” based on their race, religion, nationality political opinion or membership in a social group.

The Biden administration should not be following the Trump example. They have been expelling Haitians using Title 42, making the discredited claim Haitians are a threat to public health. This argument was crafted by Stephen Miller, who is a hatemonger and an anti-immigration kook.

Americans have been propagandized to hate and fear immigrants and refugees. Workers have every right to be angered about the degradation of their working and living conditions here but it is not immigrants who have caused that. Xenophobia and harsher restrictions on immigration are contrary to our needs as a nation.

Given our history, the Haitian refugees seeking asylum deserve so much better. America owes Haiti. Too many approach these extremely difficult circumstances with no historical perspective.

I wanted to share this poem written by Frances Ellen Watkins Harper (1825-1911) who was an abolitionist, an Underground Railroad conductor, a writer and cofounder of the National Association of Colored Women.

Make me a grave where’er you will,
In a lowly plain, or a lofty hill;
Make it among earth’s humblest graves,
But not in a land where men are slaves.

I could not rest if I heard the tread
Of coffee gang to the shambles led,
And the mother’s shriek of wild despair
Rise like a curse on the trembling air.

If I saw young girls from their mother’s arms
Bartered and sold for their youthful charms,
My eye would flash with a mournful flame,
My death-paled cheek grow red with shame.

I ask no monument, proud and high,
To arrest the gaze of passers-by;
All that my yearning spirit craves,
Is bury me not in a land of slaves.

American history, as conventionally taught, includes a number of agreed-upon stories. What seems to get remembered is much less than the full tapestry of our history. There are some stories which have been left out but which have considerable historical importance.

The story of Isaac Woodard is such a story. I did not know about him until I read Isabel Wilkerson’s book, Caste. Woodard became unknown after the 1940’s even though his story is critical to the evolution of the modern civil rights movement. No less a person than Julian Bond, Georgia’s late outstanding civil rights leader, said that Woodard’s story inspired a generation of African Americans to act.

The story begins with Woodard’s honorable discharge from the U.S. Army. After serving for three years in the Pacific theater in World War II, Woodard returned to the United States. During his time in the military he was promoted to sergeant. He earned a battle star for unloading ships under enemy fire during the New Guinea campaign. Woodard was one of one million African Americans who all served in segregated units in the U.S. military.

On February 12, 1946, Woodard boarded a Greyhound bus in Augusta Ga as he headed home to see his wife. During an early stop Woodard asked the bus driver if he could step off the bus to go to the bathroom. In that time, buses did not have restroom facilities. The bus driver said:

“Hell no. Goddamn it, go back and sit down. I ain’t got time to wait.”

Woodard responded:

“God damn it, talk to me like I am talking to you. I am a man just like you.”

The bus driver then agreed to a brief rest stop. When the bus reached Batesburg, South Carolina, the bus driver exited the bus to find a police officer to have Woodard removed from the bus.

The bus driver found Batesburg’s police chief, Lynwood Shull, along with a second officer. When the bus driver returned to the bus, he told Woodard to get off the bus as he had someone who wanted to speak to him. While accounts vary somewhat about what happened next, the police chief struck Woodard over the head with a blackjack. He then placed Woodard under arrest.

The police chief hit Woodard again and Woodard tried to wrestle away the blackjack. He stopped when the other officer pulled a gun. The police chief then proceeded to repeatedly pound Woodard in the eyes and face with the end of his blackjack. Woodard blacked out.

When Woodard woke up the next morning, he could not see. Police Chief Shull had crushed Woodard’s eyes and permanently blinded him. Doctors later diagnosed that Woodard had suffered traumatic ruptures of both globes.

The next morning Shull guided Woodard to court. In a kangaroo court proceeding, Woodard was promptly found guilty of disorderly conduct and fined $50. He had $44 in cash and the judge accepted payment of that and suspended the balance.

A local doctor recommended that Woodard be transported to the VA Hospital in Columbia South Carolina. An internist there observed hemorrhaging of the eyeballs. Woodard remained at the VA Hospital for the next two months.

VA staff applied for VA disability benefits on his behalf but there was a problem. Woodard’s blinding happened five hours after his discharge. Even though he was still in uniform on the way home, the VA denied Woodard full benefits. He was given partial disability benefits of $50 per month which was a personal disaster for Woodard because that was not financially survivable.

It took fifteen years before Congress amended the law to allow full service-related disability for a soldier who suffered a disabling injury while traveling home after discharge from the military.

After he was blinded, Woodard’s wife dumped him. His parents and sisters who had moved north during the war came to the rescue. His sisters brought him back to New York City to live. Woodard complained to his mother, “My head feels like it’s going to burst and my eyes ache.” The situation was close to hopeless.

But then the NAACP took his case and things changed. The NAACP began a major public relations campaign around Woodard’s blinding that was extremely effective. At the same time there was a wave of violence carried out in the South against returning African American veterans. Woodard’s story captured in microcosm the broader trend.

Orson Welles’ very popular radio program focused on the Woodard case. Joe Louis, the heavyweight champion organized a benefit concert in Harlem that featured Cab Calloway and Nat King Cole. Woody Guthrie wrote an original song about Woodard and sang it at the benefit. The concert was very successful and raised money to help Woodard who was impoverished.

The federal government had been a passive bystander (and worse) to the prevailing racism of the 1940’s. Although J. Edgar Hoover and the FBI had a dismal record on civil rights, even Hoover thought Woodard’s case was flagrant. President Truman and Attorney General Tom Clark faced pressure to act.

At the time the federal government had almost entirely defaulted on prosecuting crimes of racial hate but the Justice Department filed suit against Shull. Not surprisingly, an all-white jury quickly acquitted him. That was the norm. The Charleston South Carolina federal court judge in the case, Judge J. Waties Waring was horrified both by a weak prosecution and by the racist verdict.

Sometimes disgraceful crimes that remain unpunished can lead to entirely unexpected outcomes. Both President Truman and Judge Waring were shocked by the Woodard events. Truman issued an executive order establishing the President’s Committee on Civil Rights. The Committee issued a report in October 1947 entitled “To Secure These Rights”. The report challenged Jim Crow and made many progressive proposals, including desegregating the armed forces and federal government employment.

While Truman was no civil rights firebrand, in July 1948 he issued another executive order ending segregation in the armed forces. Before his presidency ended in 1951 he issued a series of executive orders prohibiting discrimination by federal contractors in a number of federal agencies like the Department of Defense, Commerce and the Interior. It must be remembered that this was a time when there was overwhelming hostility to civil rights among American voters.

Judge Waring went through a process of personal transformation and racial awakening. The Woodard case opened his eyes. It did not take long for Judge Waring to be receiving death threats from the racists and segregationists. Waring ruled against South Carolina in a white primary case. South Carolina had been excluding qualified voters from its primaries based on race.

As part of a three judge panel, Judge Waring later issued a powerful dissent in Briggs v Elliott, a forerunner case to Brown v Board of Education. He found that “segregation is per se inequality”. Waring’s analysis reappeared in the Brown opinion.

Probably most people think the civil rights movement began in the 1950’s. In his book Unexampled Courage, Richard Gergel shows the movement’s 1940’s roots. A strong argument can be made that the Woodard case and its aftermath kickstarted the movement.

Once upon a time, Isaac Woodard’s name was one of the most recognizable names within the Black community in America. But that was over 70 years ago. His name has been long buried and forgotten just like much of our racial history. Woodard’s story should be acknowledged as an integral part of American history.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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