Jonathan P. Baird

After the oral argument at the U.S. Supreme Court on the Mifepristone case, FDA v Alliance for Hippocratic Medicine, most pro-choice commentators breathed a sigh of relief. It appeared that the Court was not buying that the Alliance for Hippocratic Medicine had standing, a legal doctrine required to allow a case to move forward.

To have standing, a party must be able to show they have been injured in some direct way the Court could remedy. In this case, the harm was entirely speculative. The anti-abortion doctor plaintiffs argued a theoretical possibility of harm which was unpersuasive.

At stake is the future of medication abortion. According to the Guttmacher Institute, the medication Mifepristone, figured in 63% of medical abortions in the U.S. in 2023. Based on the oral argument, it is unlikely this will be the case to ban medication abortion.

That said, the fact that this dumb case will not succeed in getting rid of medication abortion is not reassuring to reproductive rights supporters. The anti-abortion movement is looking to use a zombie law, the 1873 Comstock Act, to justify a national ban on all abortions. Both Justices Alito and Thomas mentioned it in the oral argument with Alito calling it a “prominent law”.

Conservatives are looking to the Comstock Act as the vehicle to ban every single abortion in America whether in red or blue states.The Comstock Act was originally about banning pornographic literature, birth control and early abortion-incducing substances that were sent through the mail. It is extremely likely conservatives will try and revive this 19th century law which has been in deep sleep mode.

To appreciate the craziness of the Comstock law revivers, you need to look at who Anthony Comstock was. In his time in the later part of the 19th century, Comstock was one of the most feared and reviled men in America. The writer Amy Sohn, who authored The Man Who Hated Women, a biography of Comstock, wrote:

“Comstockery and Comstockism came to connote prudishness, control, censoriousness and repression of thought.”

Sohn wrote that Comstock did more to curtail women’s rights than anyone else in U.S. history. He was an anti-sex freak who literally had no understanding of reproduction. He believed a fetus could form seconds after unprotected sex. He was horrified by pictures of naked bodies.

Comstock was a book banner. He bragged about removing thousands of books from circulation that touched on sex in any way. He was quick to place such books in the category of pornography. According to Sohn, Comstock, with no remorse, drove 15 people to suicide with his relentless prosecutions. He was against everything he considered obscene or that he believed suggested lust.

Roe v Wade had turned the Comstock Act into a dead letter but with that precedent overturned the anti-abortion movement plans to bring Comstock back from the dead. Mail is implicated in every abortion whether in clinics or by medication. All tools and medications come through the mail. The anti-abortion movement will either re-fashion the current Mifepristone case or bring new cases to the Supreme Court relying on the Comstock Act as their means to achieve a national abortion ban.

Democrats and all supporters of women’s rights should seek to repeal the Comstock Act. Congress previously repealed parts of the Act connected to birth control but other parts of Comstock were never repealed. There is a legal argument that the law was set aside by a court decision in 1930 but that will be part of the argument.

As a woman-hater, Anthony Comstock should be seen as one of the worst people in American history but the anti-abortion movement sees the law named after him as their fastest route to the result they want. They don’t care he was a misogynist.

It is not reassuring that FDA v Alliance for Hippocratic Medicine made it to the High Court. The story behind the case deserves mention because this is a meritless case that passes no smell test. A judge with no medical or scientific expertise found a medication unsafe despite the FDA’s long-standing approval of its use. Mifepristone has been used by 5.6 million women and research shows fewer serious risks than Tylenol.

The plaintiffs set up shop in Amarillo Texas even though none of them had members there so they could judge-shop and get their case heard by Matthew Kacsmaryk, the only judge in that district. Kacsmaryk is an anti-abortion fanatic who Donald Trump appointed to the federal bench. Even though Mifepristone was approved by the FDA in 2000 and had been used safely for 24 years, Kacamaryk ordered a nation-wide ban against the use of Mifepristone.

The Fifth Circuit Court of Appeals, another hub of far right Trump appointees, largely let Kacsmaryk’s decision go forward although his injunction was stayed pending the Supreme Court’s decision. Kacsmaryk relied on discredited medical studies and internet blog posts to make his case against Mifepristone.

The Supreme Court is not done with abortion issues this term. In April, in the case of Idaho v United States, the Court will determine if medical providers can continue providing abortions to pregnant women who are experiencing dire medical conditions. Idaho has a near-total ban on abortion . The state law conflicts with requirements of the Federal Emergency Medical Treatment and Labor Act. The Biden administration is attempting to enforce the federal law.

This case also would not be happening if Roe had not been reversed. The federal law requires stabilizing treatment for any emergency medical condition. Idaho takes the position that necessary care will not be provided until the patient’s condition deteriorates to the point where a physician is “objectively certain” that an abortion is needed to save her life.

The consequences of delay could be devastating for women. Consequences of delay in the emergency could include sepsis requiring limb amputation, uncontrollable uterine bleeding, preeclampsia. hypoxic brain injury and permanent fertility issues. Since January 2024, the Supreme Court has allowed Idaho to enforce its law pending the Court’s decision.

The threat to women is not stopping. It is a mistake to see these cases as unrelated. They are part of the anti-abortion movement’s project of entrenching white Christian patriarchal dominance. The lawyers in both the Mifepristone case and the Idaho case are the same. They are from Alliance Defending Freedom, a far right extremist organization that the Southern Law Poverty Center considers a hate group.

It is hard not to wonder what is next: will some ultra-conservative judge say birth control is unconstitutional? Don’t be surprised.

In my last article, I outlined a progressive Democratic agenda 2025 that differentiates sharply from what the Republicans are selling. The Democrats are a big tent and I write with the recognition that some Democrats, likely quite a few, will not share this perspective. My earlier piece did not address a number of critical issues so this piece continues the argument deepening what a progressive Democratic project should be about.

• Democrats oppose economic inequality while Republicans are wedded to the interests of the 1%. The richest families in the U.S. have experienced far greater gains in wealth than other families in recent decades. The richest 1% of households averaged 104 times as much income as the bottom 20% in 2020 according to the Congressional Budget Office. Income and wealth inequality have returned to Gilded Age levels. Democrats favor a far more equitable distribution of income and wealth that would dramatically lessen poverty. Poverty is morally unacceptable in a country as wealthy as America. Changes in the tax code and its enforcement could dramatically improve life for the bottom 80% monetarily. With so many billionaires and millionaires, a wealth tax is an idea whose time has come.
• Homelessness and our housing crisis deserve immediate attention. Democrats favor a housing policy that refocuses attention on our lack of adequate affordable housing. Rents have skyrocketed and for many home ownership has become an impossible dream. Far too many are homeless and too many blame the homeless for this predicament. Instead of blaming the homeless and criminalizing homelessness, Democrats recognize that housing policy must evolve to help a wide swath of people who are struggling to afford the cost of housing. Rent control in some locales, expanded federally subsidized housing and the building of far more housing for low and middle income people are important public policies that Democrats support.
• Democrats support campaign finance reform and disclosure laws which force the exposure of dark money. Several Supreme Court decisions, including Citizens United, have led to political campaigns awash in unlimited often dark money. The law has given the super-rich an unfair advantage allowing them to buy or heavily influence elections. Even worse, we cannot find out who is behind secret mega-donations. Democrats believe in transparency and public financing of elections as a way to promote the fairest outcomes.
• It is time to expand the number of Supreme Court justices. The Supreme Court started with six justices. Under President Adams, it went down to five. President Jefferson restored a sixth seat and added one justice. President Jackson added two seats. Later during the Civil War, the court increased to ten and then shrank back to nine justices where it has remained since 1869. It is constitutional to change the number of justices. In light of Republican gamesmanship, we are stuck with an ethically-challenged, out-of-touch Court.. Republicans have packed the present Court which appears to be owned by billionaires. Democrats support Congress expanding the number of justices to make the Court more representative of the American people. For those progressives who belittle the differences between our two parties, I would point to the importance of which party has the opportunity to make court appointments. Contrast Ketanji Brown Jackson with Gorsuch, Kavanaugh or Coney Barrett.
• Democrats support a ceasefire and an immediate end to the Israel/Gaza war. This war is a humanitarian catastrophe with absolutely horrible loss of life. Although the Hamas attack on October 7 was a war crime, Israel’s response has been a drastic overreaction. Democrats support an end to hostilities, release of hostages and an infusion of massive humanitarian aid to prevent starvation and disease.
• American foreign policy needs much more reliance on diplomacy and much less on war, militarism, and feeding the military-industrial complex. Democrats favor significant cuts to the military budget and a far less interventionist foreign policy. After both the pointless wars in Vietnam and Iraq , Democrats support a thorough reassessment of our goals of empire. Americans have been repeatedly misled into war. We must insist in the strongest fashion that nuclear war never be fought. There would be no winners.
• Democrats oppose racism and white supremacy and we believe in a de-segregated society. Whether it is school re-segregation or residential segregation, America has been moving backwards. Democrats acknowledge that America was founded on our two great national sins: slavery and genocide of Native Americans. Democrats are committed to an honest recognition of these sins along with an action agenda to address them. Republicans pretend to phony colorblindness. Their attacks on critical race theory and Diversity Equity and Inclusion programs are a thinly veiled retreat back to white supremacy.
• Hate is un-American. Whether it is against trans people, other LGBTQ people, Jews, Muslims, African-Americans or Latinos, the hate being spewed by MAGA Republicans is disgusting. Democrats support tolerance and understanding toward all minorities. Scapegoating a group is all too reminiscent of white supremacist hate groups who have played too prominent a role in the American past as reflected in lynchings.
• Democrats are committed to science and intellectual honesty unlike the Republicans who have become the party of the Big Lie, conspiracy theories and misinformation. Whether the issue is climate change or the efficacy of vaccines, America cannot retreat into a world of lies. Intellectual dishonesty can only lead to disaster. If Republicans cannot even accept the fact that Biden won in 2020, you have to wonder what other facts they won’t accept. Being unable to accept facts and inventing your own world is a recipe for a nightmare.

Numerous observers have commented on the vital importance of the 2024 electoral race. Democrats have a potentially powerful agenda. People who think there is no difference between the parties are living in a state of delusion. While there is certainly internal division among Democrats, at least they are fighting over progressive steps and the best way to achieve them.

About the Republicans, I am reminded of a quote from James Baldwin:

“People who shut their eyes to reality simply invite their own destruction and anyone who insists on remaining in a state of innocence long after that innocence is dead turns himself into a monster.”

2024 promises to be fascinating.

Many close observers of the 2024 presidential race have commented on Project 2025, the Republican plan for what they intend to do if Trump wins in November. The plan is a maximalist horror show that includes a far right wish list in every area of life. Drafted by the Heritage Foundation, there is nothing shy about it.

The Republican Party has degenerated into a party that will take America from democracy to dictatorship and fascism. As the historian Timothy Snyder has pointed out, when you vote a strongman in, you vote out the rule of law.

Many Democrats are genuinely alarmed by Project 2025 but instead of proposing an offensive strategy, they respond in a defensive way. This leads to emphasizing how bad Trump is and suggesting Biden will restore normalcy and moderation. It doesn’t present any idea of the changes a Biden re-election would represent.

I would suggest a completely different approach. Regardless of what Democrats actually say, Republicans will call us “socialists”. Democrats should have their own maximalist progressive wish list that contrasts sharply with the far right. That will give voters a much sharper picture of the difference between the two parties. Here’s my Progressive Agenda 2025. In compiling this list, I have consulted with no one. This is my list.

• Democrats support expanding democracy and we oppose fascism. Republicans pose the most dangerous threat since the Civil War to the well-being and freedom of all Americans. Trump says he will be a dictator on day one. He promises a police state, invoking the Insurrection Act. Because of the criminal charges he faces, Trump would never allow another fair and free election where he could lose. He threatens a free press and anyone who criticizes him. In contrast, Democrats propose expanding voting rights through automatic voter registration. The United States has one of the lowest voter turnout rates among developed nations. More than a quarter of eligible voters are not registered to vote. Democrats support expanded voting, not voter suppression and undemocratic gerrymandering.
• Democrats stand with working people and we oppose mass layoffs. Democrats should not be telling workers how great things are. They are not. All working-class people are threatened by mass layoffs because of Wall Street greed. In 2024, more than 262,000 people lost their jobs and another 41,700 so far this year. Tech workers have been especially hard hit. As the writer Les Leopold argues in his book, Wall Street’s War on Workers, mass layoffs are the most salient economic issue facing the working class. Democrats should place job stability at the center of their demands.
• Democrats should support Sen. Bernie Sanders’ idea to enact a 32-hour workweek with no loss in pay. When Shawn Fain, UAW president, just spoke in support of Sanders’ 32-hour workweek legislation in Congress, he pointed out that in 1933 the U.S. Senate passed legislation to enact a 30-hour workweek but it failed due to corporate opposition. It has been 84 years since FDR signed the Fair Labor Standards Act in 1940 establishing a 40 hour workweek, Change is long overdue.
• Democrats must fight to make union organizing easier. An overwhelming majority of Americans support unions but federal law has until recently been tipped heavily in favor of employers. Democrats should support the Protecting the Right to Organize Act that has the goal to make union organizing and bargaining easier.
• A Green New Deal must be supported. In contrast to the Republican climate change deniers, Democrats must recognize the climate emergency and take immediate action toward the goals of net-zero greenhouse gas emissions and 100% renewable energy. Part of the Green New Deal is a federal jobs guarantee with jobs at a livable wage, Medicare for All, universal paid family and medical leave and a tax on the super-rich.
• Abortion rights, the right to birth control and womens’ reproductive rights deserve our strongest support. Trump strongly stands behind the Supreme Court’s decision taking away women’s right to choose. Republicans are likely to support a national abortion ban, invocation of the Comstock Act, ending access to abortion pills as well as opposition to IVF. All these policies are deeply unpopular. Never have Americans lost a right they held for 50 years. Democrats should try and put the right to choose on every ballot in every state across the country. Democrats support choice.
• Democrats oppose the hate, dehumanization and racism directed against immigrants by Trump and the Republicans. We need order at the border but we also need a legal path to citizenship. Also the right to asylum is an international human right and America must continue its tradition of allowing that right. The MAGA Republicans have been spewing hate in all directions including against LGBTQ people, Asian Americans, Muslims, Jews, Latinos and African Americans. Democrats oppose all hate. Republicans talk about deporting millions of immigrants and putting them in concentration camps. This is Hitler-talk and Democrats are unalterably opposed to treating anyone in such a dehumanized fashion.
• Democrats should support the most expansive student debt relief. It is crazy that a four year college experience can cost over $200,000. That places an unreasonable burden on student debtors. As a matter of public policy, Democrats don’t see student debtors as morally culpable for the creation of a system that weighs the heaviest on the students who have the least.
• Democrats must work to reduce gun-related deaths. Universal background checks, banning high-capacity ammunition magazines, banning assault-style weapons and raising the minimum age for buying guns to 21 are all reasonable reforms that should be supported. No right is absolute and the horrible price we have been paying in mass shooting events, domestic violence-related gun deaths and suicides by gun should lead to change.
• Contrary to what Republicans are saying, we were not better off four years ago. Trump totally mismanaged COVID-19. That led to hundreds of thousands of needless deaths. Being anti-science and opposing vaccines is stupid which is not surprising from a party that supports book banners

Democrats are now the only major party that supports democracy. The MAGA Republicans are a cult of personality wedded to the whims of one sadistic man. They stand for whatever he says. How pathetic!

There has been much nonsense written about the white working class and their supposed support for Trump. The hard core of MAGA is more made up of upper middle class people and business owners. Some of Trump’s working class support would desert him if Democrats spoke to them and opposed Wall Street’s greed.

Democrats need to stop being afraid of their own shadows. Our views are right on in 2024.

Up until the recent Alabama Supreme Court decision, the concept of extrauterine children was foreign to me. It is a hard concept to wrap your head around. I hadn’t seriously considered the idea that frozen embryos were children. However people spin it, there is a big difference between a zygote or a small cluster of cells and a live person.

The Court argued that from the moment of conception, a fertilized egg has the same rights as a born human. Such a conclusion, supporting fetal personhood, is grounded in the most profound sexism and disregard for women and their rights. There is no equivalence.

The Court decision has caused massive confusion and chaos as it threw a monkey wrench into all assisted-reproductive treatments in Alabama. The Court effectively side-lined in vitro fertilization or IVF. Doctors remained uncertain if they could face severe criminal penalties for “wrongful death” if they continued a practice previously lauded.

Many would-be parents who had heavily invested in IVF treatment were left high and dry, not knowing if their treatments would continue. It appeared the Court had no idea how IVF works. Roughly half of fertilized eggs don’t naturally implant and are flushed out. Is that murder? Please.

I am reminded of a line from George Carlin’s routine about abortion: “Does every ejaculation deserve a name?”

IVF is about helping couples succeed at having a child. It is a complicated series of procedures designed to give a woman the best chance to get pregnant. IVF has helped many couples experiencing a range of infertility issues.

The irony is that the pro-life movement is roadblocking and potentially prosecuting parents who want to have kids. IVF procedures typically require more than one embryo-zygote. Embryos are commonly destroyed to get one successfully fertilized and implanted.

Fetal personhood conflicts with and diminishes the reproductive rights of pregnant women and girls. The Court is elevating the rights of a zygote over grown adults and young people. Even worse, it criminalizes women and girls for exercising their reproductive rights and making their own decisions. You have male jurists imposing patriarchal control over women and girls.

A look at the Alabama decision quickly shows that its rationale is not in law – it is in the Bible. In his opinion, Alabama Chief Justice Tom Parker cited the Books of Genesis, Exodus and Jeremiah. This is a judge who apparently believes the United States is a theocracy. The Bible is his basis for defining frozen embryos as people.

But we are not a theocracy. We have a separation of church and state written in the First Amendment. That amendment states, in part, “Congress shall make no law respecting an establishment of religion…” The Alabama Chief Justice is imposing his religion on the rest of us.

Robert Reich compared the Alabama IVF court case to the Scopes monkey trial in 1925. In that case, the state of Tennessee made it illegal to teach human evolution in Tennessee schools. The judge in Scopes also quotes the Book of Genesis at the outset of the trial just like Chief Justice Parker in Alabama.

It took until 1968 for the U.S. Supreme Court to clarify the issues raised in Scopes. The Court in Epperson v Arkansas ruled that government in our democracy must be neutral on matters of religious theory. Because the primary purpose of the Arkansas anti-teaching of evolution law was religious, it contravened the Establishment Clause of the First Amendment.

The Alabama Chief Justice’s opinion is a tip-off that far more is going on than simple opposition to IVF treatment. The Christian Right, of which Chief Justice Parker is a part, has been jet-propelled by Justice Samuel Alito’s Dobbs decision that overturned Roe v Wade. They have a broadly misogynistic and anti-gay agenda that has multiple prongs.

The agenda includes banning IVF as well as specific forms of birth control like the morning after pill and IUDs. They oppose all abortions without exception. They have the Mifepristone case at the Supreme Court. Additionally, they aim to reverse and outlaw same sex marriage and roll back LGBTQ rights. They hope to pass legislation to allow taxpayer money to fund private and religious schools, a project that has already had some success.

Where the Alabama case leads is towards mass criminalization of pregnant people. Pregnant women and girls are facing prosecution on the pretext of protecting “unborn life”.

In her book Policing the Womb, Michele Goodwin thoroughly exposes the trend toward criminal punishment of pregnant women. Every pregnancy becomes a potential crime. Penalties include criminal and civil incarceration for miscarriage and stillbirth, as well as punishments for behaviors perceived to threaten fetal health. Witness the recent case of Brittany Watts of Ohio. She was prosecuted for “abuse of a corpse” after a miscarriage. Fortunately the grand jury did not indict.

The hypocrisy of the Christian Right could not be more extreme. The concern for life ends when the fetus is born. The states with the strictest abortion laws do the least when it comes to maternal mortality, child wellness, food security and access to affordable health care.

Republicans were so freaked out about the possible political consequences of the Alabama Supreme Court decision that they promoted and approved a bill providing civil and criminal immunity for IVF providers and recipients. The Alabama legislature skirted the matter of fetal personhood. No way will Christian Right extremists accept what the Alabama legislature did.

We can expect more lawsuits against IVF as many anti-abortion Republicans want more restrictions on IVF treatments such as having a process for dealing with embryos once households achieve their family goals. These Republicans believe a frozen embryo represents a life.

The Alabama case is not over. It has just begun. In this election year, Democrats and all who support women’s reproductive rights must make Republicans own their anti-IVF position.

Usually I harbor low expectations about how the U.S. Supreme Court will rule. That is because of the far right plurality on the Court that rarely deviates from the Federalist Society “billionaires are us” party line. But even my very low expectations were disappointed by how the Court chose to approach Donald Trump’s appeal of his presidential immunity case.

The Court is supposed to be above politics but in taking this appeal it is like they were returning some MAGA favor. This is a case the Court had absolutely no need to engage. Judge Tanya Chutkan in the federal court and the unanimous D.C. Circuit Court of Appeals had decimated Trump’s arguments.

You don’t have to be a lawyer to appreciate the absurdity of Trump’s legal argument. His legal team argued presidents should be forever immune from criminal prosecution for crimes they commit during their presidency.

That is the definition of a dictator. Or as Judge Chutkan previously wrote Trump’s four years as president didn’t give him the “divine right of kings to evade the criminal accountability that governs his fellow citizens”. Trump’s argument has chutzpah but its extremism is obvious. No way will the Supreme Court side with Trump on the merits.

The thing is, this case is not about the merits. It is about the far right supermajority of the Court running out the clock for Trump so that he doesn’t face accountability before the election for his efforts to overthrow our constitutional republic. The Supreme Court is well aware of the timeline between now and the election in November,

The way they have slow-walked the case is telling. Judge Chutkan decided the immunity issue back on December 1, 2023. The federal prosecutor Jack Smith made a bold move on December 11. He tried to expedite the decision process by jumping the Court of Appeals and having the Supreme Court take charge. The Court refused. After the D.C. Circuit decision, Smith tried again to get the Court to move quickly. The Court had the option to decline accepting the case, a case with no merit.

Instead, the Court took two weeks to issue a one page scheduling order and say that the case would be heard seven weeks later, on April 22. No one knows how quickly after that the Court will decide. They have not acted with alacrity. They could conceivably wait until the end of the Court’s term in late June to decide the case.

The problem is delay increases the chances no federal prosecution will occur before the election this fall. This is the Trump strategy – delay, delay, delay. That way Trump could make it to the election without being convicted of any federal felony charges, a result that enhances his presidential re-election prospects.

Judge Chutkan, who sits on the January 6 case against Trump, has allowed for 88 days for Trump lawyers to complete trial preparations once the pause is released. This pushes the timeframe back so much that the chances of a trial being completed before the election are greatly diminished. A January 6 trial could easily take three months.

Courts can choose to act quickly. That was true in Bush v Gore and also in U.S. v Nixon. The Court knows exactly what it is doing in taking its sweet time. It is a giant gift to Trump and the Republican Party. It is a certainty that some percentage of Republicans would balk at voting for a convicted felon.

The public has a right to know whether or not Donald Trump is guilty of federal crimes before the election. By depriving the voters of that knowledge, the far right majority of the Court is lending a helping hand to their political friend.

How Justice Clarence Thomas is allowed to be a part of any January 6 proceeding when he has a clear conflict of interest is beyond troubling. For those who may have forgotten, Justice Thomas’s wife, Ginni, was an organizer and active participant in January 6 events. The failure of Thomas to recuse is unethical, corrupt and has the appearance of impropriety. He has an interest in protecting his wife.

Thomas should not be participating in any decision about whether the Court would take the immunity case. Where is Chief Justice John Roberts with his new toothless Code of Conduct? The inaction humiliates the Court. Apparently Roberts wants everyone to look the other way and pretend the corruption before our eyes isn’t happening.

There is one takeaway from the Court’s action around the immunity case that has been insufficiently called out. That is the role of money in how our justice system operates. In 2023, Donald Trump spent $50 million in attorney fees. No doubt 2024 will continue that pace with another ungodly sum burned through.

In America you can have all the justice you can buy. Justice has been reduced to a purchasable commodity. This is really about the two-tiered system of justice under capitalism. It is a different system for the super-rich who buy their way out of jail. For poor and low income people, there is mass incarceration for much less significant crimes than those committed by Trump.

Trump’s resources have enabled him to lawyer around outrageous criminal conduct. It is a finagling capacity refined over 50 years of practice. What could be more outrageous than a coup to overturn a fair democratic election? That defines big. Trump’s successful use of delay reflects our legal system’s soft stance toward white collar crime. In his book about the Supreme Court, Supreme Inequalty, Adam Cohen writes:

“In criminal cases involving wealthy and powerful defendants or ones who do not fit the “traditional” model of what a criminal is, the Court has frequently second-guessed prosecutors, given defendants the benefit of the doubt and found ways of reading criminal law narrowly to overturn convictions. “

Money doesn’t guarantee success in every case. The New York civil cases against Trump show that but all the lawyering leading to delay has greatly served Trump’s interests. He may never have to stand trial for either the January 6 case or the Mar-a-lago documents case.

If he wins the presidency again, one of Trump’s first acts will be to fire Jack Smith and to dismiss the federal cases against himself. Assuming the Supreme Court rules that presidents are not immune from prosecution which is an almost certainty, Trump would have powerful incentive to never leave office. Leaving office would mean the return of federal charges and likely jail time. That is why many believe 2024 could be our last democratic election if Trump wins.

Trump is the unusual criminal defendant not looking for a speedy trial. Never has the old saying “justice delayed is justice denied” more aptly fit a situation.

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.