I have hope. Is that misplaced?

Sometimes this blog receives comments which deserve space to breathe. This one is from an old friend of mine: Pascal Piazza and I met on the first day of the 9th grade, at our alphabetically-assigned lockers in the hall of the 300 building of Houston’s George W. Strake Memorial Jesuit College Preparatory for Young Christian Gentlemen (which, of course, we were). Since then he became a respected lawyer, and has been admitted to practice in all Texas courts including the state’s supreme court, the Supreme Court of the United States and the U.S. Circuit Court of Appeals for the Fifth Circuit, and enough federal district courts and bankruptcy courts in this part of the world to make your eyes bug out. He’s been generally and repeatedly frustrated by some actions and inactions of the Supremes in recent cases (you’ll recognize which ones), and finally took it out on his keyboard. PR

To the Honorable Justices of the Supreme Court of the United States:

As a citizen, a retired attorney of 40 years, and a native Texan, I adopt the personal privilege to comment, in a colloquial manner, on two potentially very divisive issues which, when resolved by the application of the plain text of the Joint Resolution Annexing the State of Texas and the 14th Amendment to the Constitution of the United States, respectively, need not be divisive and will restore the rule of law. Both issues are easy to decide. The parties may try to complicate them, but y’all can follow the easy, established, and time-honored path.

It’s About the Joint Resolution Annexing the State of Texas.

You will be asked by attorneys acting for the Governor of Texas to allow Texas to implement certain means (e.g., installing razor wire or deploying roving private militias) to try to prevent undocumented persons from crossing into Texas through its southern border of the Rio Grande, and further to prevent the U.S. from entering land along that border or to interfere with or remove the mitigating means, solely on the grounds of Texas’s perceived “right of public defense.” Curiously, y’all will be asked to rule on this issue by the same Texas officials who’ve already suggested they don’t have to comply with any of your rulings that they do not like, because they elevate their perception of the sovereignty of Texas over all else. There is, however, no need for the issue of Texas’s perceived right of public defense to escalate into accelerating tensions, to revive the nullification doctrine, or to precipitate something worse. Instead, y’all sit at the forefront to show that Texas, like all states and persons, has the right to redress in the courts under the rule of law, and to remind the state that Texans are known for living up to their word of honor regardless of party affiliation or political persuasion. Y’all have an easy task before you; only you can make it difficult. Here’s a path to the easy way instead of the hard way.

The U.S. and Texas, by mutual consent, defined the right of public defense back in 1845, at the time the U.S. annexed Texas by means of a joint resolution of the U.S. Congress which was accepted by the Republic of Texas. That right of public defense was an integral part of the unambiguous text of annexation. Y’all need only follow that text without gloss.

The text of the Joint Resolution Annexing Texas to the United States provides that Texas cedes to the U.S. “…all public edifices, fortifications, barracks, ports and harbors, navy and navy-yards, docks, magazines, arms, armaments, and all other property and means pertaining to the public defence belonging to said Republic of Texas.” [Emphasis added] It does not say that Texas cedes “all other property and means pertaining to the public defence” only when Texas agrees with federal policy. It does not state that Texas can craft its own public defense. Texas was not given a veto power. Texas was not given a right to repudiate or breach the plain terms, which vest all property and means pertaining to public defense to the U.S., whether listed or not. Texas consented to these terms.

Let’s then give these words their plain meaning. When it comes to providing for the public defense, the U.S. solely may determine whether to install razor wire or take it down, whether to use mobile militias or not, whether to enter the lands along the border or not, where or how to intercept persons crossing the border, whether to administer medical care or not, and whether to implement or pursue particular actions that Texas wants pursued. You resolve this issue by giving effect to the plain text and thereby ensuring the fully intentional, consented-to, and coordinated sovereignty of Texas and the U.S.

There is no need to look beyond that plain text defining the public defense. But the plain text of the remainder of the sentence defining the public defense affirms that the exclusive grant to the U.S. was intentional and was an essential part of the unique compromise that secured the required votes for passage of the Joint Resolution for Annexation after the prior Treaty for Annexation never could be ratified by the Senate. Texas exclusively granted the U.S. the means and property rights for public defense in exchange for Texas keeping its public lands (and what would be multiple millions of dollars in oil and gas royalties) to pay off its debts. Texas is the only state that was allowed to keep its public lands. The U.S. gave up ownership of the public lands in Texas. Those lands would yield multi-millions of dollars in revenue from the oil and gas found there. Those lands could be sold off generating significant revenues, as was the practice in 19^th century America. President Polk won election over Henry Clay in 1844 based upon his vision of westward expansion into the valuable lands of Texas, which he felt had been squandered by Spain and then Mexico. The U.S. received the right of public defense in exchange. That is what is at issue now.

The then-new state of Texas understood the plain meaning. I understand that the parties to an agreement cannot define meaning by how they perceive the meaning, but the first post-annexation Texas Constitution instructs y’all that Texas understood that the plain terms mean what the plain terms mean. That constitution confirmed that the sovereignty of Texas over its soil was secure, except for what it ceded in the Joint Resolution for Annexation or otherwise in the U.S. Constitution. It knew that the property and means of public defense, by consent, vested in the U.S.

Therefore, under the text of the Joint Resolution for Annexation, Texas occupies a unique position. It should now – as all true Texans do – stand on its word, even if it is a handshake deal. Of course, there is much more here than just a handshake.

Y’all will hear that Texas has some natural or inherent right of public defense. Regardless of whether such a right does or does not exist, Texas ceded it to the U.S. when the state was annexed in 1845.

Y’all may then ask whether Article I, Section 10, clause 3 of the U.S. Constitution grants Texas some right of public defense in case it is ever invaded, whether the U.S. consents at the time or not. Well, under Texas’s unique position, the text of the Joint Resolution for Annexation still is the starting point. In addition, the text of Article I, Section 10, clause 3 does not mention public defense, does not mention any of the means that Texas wants to implement or adopt, does not provide that Texas can exclude the U.S. from areas occupied by Texas, does not provide that Texas can interfere with the conduct of the U.S., and does not permit Texas to breach the compromise (which a true Texan would never do). Texas appears before y’all bound by its agreement and by the consent of Texas and the U.S. as to how the public defense plays out. Today, Texas assumes that this is a situation where there is no consent by the U.S., yet Texas and the U.S. consented in 1845 for the U.S. to have exclusive power over public defense, whether there is an invasion or not. Texas cannot repudiate that consent to try to go back on its word.

Some have even suggested that Texas would never have entered the Union had it known, or could have foreseen, that it did not preserve a right of public defense or could not use all land and other means for public defense. Well, that’s what Texas did – in writing. In Texas, we stand on our word.

It’s About the Eligibility Requirements in the U.S. Constitution

Let’s start by applying the text of the 14^th Amendment as written. Do not apply some theory of construction. Do not apply fears of political reprisals. Do not adopt a result and then read the words to yield your desired result. It does not make a difference who may be ruled eligible or ineligible. If the issue were the age of the candidate in question, you would consider only the text; y’all would not consider who the candidate is or whether your ruling would upset or even enrage the masses.

This led me to read opinions offered by distinguished retired federal judges covering the entire political spectrum based upon the text of the 14^th Amendment. How is it that these numerous distinguished federal district court judges have followed the text and find that the 14^th Amendment does apply to determine eligibility? The answer is that they followed the plain text. Your questions to the parties during oral arguments last week indicate y’all may not agree with those opinions; I hope that your questions were meant to test the attorneys, and do not reflect your belief of what the plain text actually means.

Some advocates will claim that the president, whose position is defined in the U.S. Constitution, is not an “officer.” However, the U.S. Constitution, at Article II, Section 1, states that the executive powers shall be vested in the president who holds his office over a four-year term. The dictionary defines an officer as one who holds an office. Therefore, the president is an officer as he holds the office of the president. Yet, some of your questions indicated that you may have a problem accepting this syllogism. Hopefully, you exercised your right during questioning during oral argument to test ideas rather than reveal your own conclusions. The text of the 14^th Amendment covers a person seeking to be “… a Senator or Representative in Congress, or an elector of President and Vice President, or hold any office, civil or military, under the United States.” [Emphasis added] The text, therefore, covers one who seeks to hold a federal office which, constitutionally, includes someone wanting to be the president. This wording in the 14^th Amendment does not amend the other Constitutional text that defines the president as the holder of an office (i.e., an officer).

Y’all selectively like to cite portions of the Federalist Papers or other outside writings of the Framers to try to change the otherwise unambiguous meaning of the text of the Constitution. Please stick to the text when it is unambiguous, as in the case of the 14^th Amendment, so that the inquiry ends there. The other words of the Framers are interesting historically and allow us now to assess how brilliant they were, but those words do not comprise the text of the U.S. Constitution. It is the text of the Constitution that matters, not what any Framer may have wanted to include in the text but failed to win approval for. Y’all cannot import into the text of the Constitution any words which the Framers failed to include.

Public policy cannot be the tail that wags the jurisprudential dog. If you want to make policy, then run for office. Otherwise, honor your oath. Your failure to honor your oath will cause more dissension and disruption to this country than following the text. I was taught on the first day of my Constitutional Law class that y’all like to make public policy. Just because y’all have done it before does not justify doing it anymore.

Some advocates have asked questions about states trying to impose requirements on the federal election. Colorado and Maine are simply applying the eligibility requirements as they already exist in the U.S. Constitution. They could do it, and have done it, regarding the minimum age to be the president. I again hope you were just asking questions during oral argument and not revealing your conclusions when there was a perceived concern for the states trying to impose state requirements on a federal election.

A majority of the Justices currently claim that unstated rights and conditions may not be imported into the text. So, where is the textual basis to claim that the 14^th Amendment’s eligibility threshold requires Congressional action? One opinion by one U.S. Supreme Court justice sitting as a circuit judge does not make a consensus or anything but one opinion.

The same majority of Justices also currently claim that the text of the U.S. Constitution, including the 14^th Amendment, must be construed based upon the meaning of words in 1787 and 1868, respectively. If so, the consensus of distinguished historians is that the 14^th Amendment does apply as Colorado and Maine have held. Y’all can’t ask to consult history but then reject the consensus of historians. Y’all still should just stick to the unambiguous text.

Some advocates feign the downfall of judicial process through a fear of a multiplicity of state-based lawsuits if states seek to apply the text of the 14^th Amendment. So, does this mean that states should not seek to enforce the text of the U.S. Constitution when it applies to the duties of the states? Could not the states seek to enforce the minimum age eligibility requirement? When did filing suits seeking to apply the 14^th Amendment become a bad thing? Under this argument, should former Vice President Pence not have certified the last presidential election results because it led to 60 some-odd lawsuits?

Thank you.

–Pascal Paul Piazza

Courting trouble for the former guy

Former President I Will Not Be Ignored got a little more of what he’s been begging for yesterday: attention from our nation’s judicial system. In response to his ridiculous-on-its-face insistence that former presidents enjoy lifelong complete criminal immunity from prosecution for actions taken while in office, lest they be indicted by forces of the opposing party the instant they leave office, a federal appeals court panel ruled – unanimously – that he is off his rocker. Essentially. In a legal sense.

At public arguments in January, the three judges expressed concern over the most extreme implications of Trump’s view, with one suggesting it would allow a future president to order the assassination of a political rival. But in their opinion Tuesday, they said it is Trump’s own alleged crimes — “an unprecedented assault on the structure of our government” — that threaten democracy if left beyond the reach of criminal prosecution.

“We cannot accept former President Trump’s claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results,” the judges wrote. “Nor can we sanction his apparent contention that the Executive has carte blanche to violate the rights of individual citizens to vote and to have their votes count.”

When he “warns” that all political parties would legally attack former leaders from other parties if those leaders did not enjoy legal protection, it’s a textbook example of the projection associated with his narcissism: in fact, such a thing has never happened in the past, but it is something that he himself has already promised he will do if he becomes president again next year. This case could still go to the Supreme Court; we will know within weeks. But we do know that the Supremes will be hearing a Trump case tomorrow, a case over his Constitutional eligibility to ever become president again.

The Supreme Court will hear oral arguments on Thursday in what is shaping up to be the biggest election case since its ruling nearly 25 years ago in Bush v. Gore. At issue is whether former President Donald Trump, who is once again the front runner for the Republican nomination for president, can be excluded from the ballot because of his role in the Jan. 6, 2021, attacks on the U.S. Capitol.

Although the question comes to the court in a case from Colorado, the impact of the court’s ruling could be much more far-reaching. Maine’s secretary of state ruled in December that Trump should be taken off the primary ballot there, and challenges to Trump’s eligibility are currently pending in 11 other states. Trump warns that the efforts to keep him off the ballot “threaten to disenfranchise tens of millions of Americans” and “promise to unleash chaos and bedlam if other state courts and state officials follow Colorado’s lead.” But the voters challenging Trump’s eligibility counter that “we already saw the ‘bedlam’ Trump unleashed when he was on the ballot and lost.”

At issue is a section of the 14th Amendment to the Constitution, approved in the years following the Civil War to prevent former rebels from entering government and continuing their rebellion. Paraphrasing here, it prohibits anyone who’d previously been a U.S. government official, and then later “engaged in insurrection or rebellion” against the Constitution, from later serving in government again. Pretty sensible, right? In other words, among the requirements to be president, one must be at least 35 years old and not have previously been a traitor.

Trump’s arguments that the 14th Amendment doesn’t apply to him are from the same book as his “presidents need to be able to commit crimes with impunity” arguments in the immunity case he’s currently losing.

Trump’s first, and main, argument is that Section 3 does not apply to him because the president is not an “officer of the United States.” In other provisions of the Constitution where the phrase “officer of the United States” appears, Trump notes, it does not apply to the president – for example, the clause that requires the president to “Commission all the Officers of the United States” and the impeachment clause, which lists the president and vice president separately from “civil Officers of the United States.” Moreover, Trump adds, the Supreme Court in 2010 indicated that the phrase applies only to federal officials who are appointed; it does not extend to elected officials like the president.

The voters dismiss this argument, countering that the president has been called the “chief executive officer of the United States” since long before the 14th Amendment was drafted. As with the phrase “office under the United States,” they say, Section 3 simply uses the phrase “of the United States” to distinguish between federal offices, such as the presidency, and state officers.

The voters also discount Trump’s reliance on other provisions of the Constitution. They note that although the appointments clause requires the president to appoint some “officers of the United States,” it also indicates that the Constitution provides for the appointment of other “officers of the United States” – including the president and vice president – by the electoral college. And the impeachment clause, they reason, provides for the impeachment of the president and vice president separately from “all civil Officers of the United States” because (unlike other officials) the president and vice president play both civil and military roles.

Section 3 also does not apply to him, Trump continues, because when he is sworn in the president pledges to “preserve, protect and defend the Constitution” – rather than “support” it, as Section 3 requires.

The voters contend, however, that “Section 3 is about violation of a sworn duty, not about pedantic wordplay.” The oath that the president takes to “preserve, protect and defend” the Constitution is an oath to support the Constitution, they insist.

The voters add that an interpretation of Section 3 that excludes the president, while still applying to all other officials – including “postmaster or county sheriff” – who took an oath to support the Constitution and then engaged in insurrection would be at odds with the purpose of the provision. Moreover, they suggest, it would be an exception that would apply only to Trump, because “every other President (except, of course, George Washington) had previously sworn a constitutional oath in some other federal or state capacity.”

Trump pushes back against any suggestion that it would be inconsistent with the purpose of Section 3 to hold that the president falls outside its scope. When the 14th Amendment was ratified, he contends, there weren’t any former presidents who had supported the Confederacy, so the drafters would not have had any reason to exclude the president from serving again.

There are a couple of schools of thought among Never Trumpers and other reasonable people: is it better to invoke the Constitution to keep the former guy from being on the ballot for president this year and not take a chance that he wins, or just let the election runs its course and have him suffer electoral defeat? Of course, we’ve seen what happens when he loses an election fair and square, and we’ve seen what happens when he wins. I found E.J. Dionne’s argument of how his mind has changed on this question to be persuasive.

Though I agreed that Trump had, indeed, engaged in insurrection, I thought it would be best for the country to have him go down to defeat again in a free and fair election. Keeping him on the ballot so voters could decide was the path to long-term institutional stability and might finally force a reckoning in the Republican Party.

Many people I respect continue to hold versions of this view. But the more I read and listened, the clearer it became that Section 3 was directed against precisely the conduct Trump engaged in. [Emphasis added] Its purpose is to protect the republic from those who would shred the Constitution and destroy our system of self-government. What Trump did in advance of the attack on the Capitol and on Jan. 6, 2021, legally disqualifies him from the presidency.

The record is clear that the legislators who wrote and enacted the amendment in the wake of the Civil War were not just thinking of the Confederacy’s leaders but also of “the leaders of any rebellion hereafter to come.”

Those are the words of John B. Henderson, a Republican senator from Missouri, when he cast his vote for the amendment in 1866. They are recorded in a powerful amicus brief filed with the Supreme Court by a distinguished group of historians of the era: Jill Lepore, David Blight, Drew Gilpin Faust and John Fabian Witt.

The amendment’s authors, they argue, “hoped not only to prevent a resurgence of secessionism but also to protect future generations against insurrectionism.” It was intended “to bar anyone who has betrayed an oath to uphold the Constitution from becoming President of the United States.”

(snip)

And to argue that barring Trump from the ballot is “antidemocratic,” wrote professors Carol Anderson and Ian Farrell in another brief, is “ironic … as he bears by far the most responsibility for attempting to subvert democracy on Jan. 6.” An effort to overthrow constitutional procedures, wrote [Sherrilyn] Ifill, should be distinguished from political protests, even those “accompanied by sporadic acts of violence.” Demonstrators are not the same as a mob trying to hijack the government.

(snip)

Throwing Trump off the ballot would seem, on its face, the opposite of democracy. Yet the whole point of Section 3 is to protect constitutional democracy from anyone who has already tried to destroy it. If its provisions don’t apply to Trump, they don’t apply to anyone. The court would not be disqualifying him. He disqualified himself.

The court convenes at 10 a.m. ET tomorrow; you can listen live to the arguments here or download the clip later.

ALSO: The Washington Post’s Aaron Blake with insight into the damage done to Trump by the loss in his immunity claim case.

83 millions reasons to be happy

If it is true that we like to see good things happen to good people, I suppose it’s also true that we like to see bad things happen to bad people. I know I do. So today is a very happy day indeed, to see that a New York jury has awarded $83.3 million in damages to the writer suing Donald Trump for “defaming her in social media posts, news conferences and even on the campaign trail ever since she first accused him in 2019 of raping her in a department store dressing room decades earlier.” Most of that, $65 million, is punitive damages – punishment for the defendant’s conduct. Well done, sir!

I’d be stunned (shocked, like Claude Rains was) if Trump ever paid the money – he has a long history of delaying and deferring and settling lawsuits for pennies on the dollar with adversaries who’d rather take something than nothing at all – but it is heartening any time he doesn’t get his way with his bullying and bloviating and insistent lying. Lying, like just last night, when he repeated his worn-out self-defense of the original rape/sexual assault allegation, insisting “I don’t even know who this woman is. I have no idea who she is, where she came from.” In present tense. Really? Even if that were true years ago when the accusation was first made, how can you honestly claim today that you do not now know who she is? Is telling the truth just that hard for you? (“I know you lie, your lips are moving…”)

This has also been an opportunity for the former guy to give us another demonstration – as if we needed one – of his wide-ranging ignorance. He used his own social media service this afternoon to say he disagrees with all the verdicts in this case, that he will appeal today’s decision on damages, that he blames Democrats for the suit in the first place (huh?), and that some unspecified “they” have “taken away all First Amendment rights,” presumably by limiting his testimony in court and restricting some of the witnesses his lawyers wanted to call. Of course, “they” have not and did not do that. At all. But you knew that.

You knew that the First Amendment right to free speech does not mean that we are all endowed with the right to say any thing we want, at any time we want, any where we want, to any body we want, and that no one can do any thing about it. The First Amendment prohibits the government from censoring your speech or other expressions of opinion, unless the speech in question falls into one of the categories which the courts have determined are NOT protected: child pornography, or a solicitation to commit a crime, for instance…or in this case, speech that is defamatory.

Judges have a right to run their courts; a higher court can punish this one if he is found to have violated the law. Don’t hold your breath waiting for that to happen in this case.

Meanwhile, there are more courts hearing cases against you know who: the judge in the New York civil fraud trial against Trump and his business promised a ruling before the end of the month, and then there are the rest of the now-famous 91 indictments, including the it-seems-really-clear-he-did-it classified documents case in Florida. AND some Republicans are starting to admit, publicly, that Trump’s acknowledged efforts to get the GOP to refuse to compromise with Democrats to pass an immigration bill…

…Trump has been lobbying Republicans both in private conversations and in public statements on social media to oppose the border compromise being delicately hashed out in the Senate, according to GOP sources familiar with the conversations – in part because he wants to campaign on the issue this November and doesn’t want President Joe Biden to score a victory in an area where he is politically vulnerable.

…are bad for the party and bad for the country. Of course, what is good for the party and good for the country have never been priorities for the former guy.

The Stakes

“The system” is finally catching up with the non-stop stream of lawbreaking by the former guy and his collaborators that aimed at upending the legal result of the 2020 presidential election. They were working so hard and fast for so long that it took more than two years for the judges and lawyers on the side of truth, justice and the American way to amass the evidence needed to bring charges, and now the fun has begun.

My favorite character currently is Judge Tanya Chutkan, the federal court judge in Washington hearing the case against Trump (and others) on charges of conspiring to overturn the election. Her string of figurative “up yours” responses to stupid defense motions is so satisfying: the Trump team isn’t used to being in front of a judge who knows the law, isn’t intimidated by them and their client, and isn’t scared to show it.

For example, this week she rejected arguments from both sides over setting a trial date. The special counsel suggested jury selection in December and the trial to begin in January…this year; Trump’s lawyers say there is sooo much they have to read to get ready that the trial should be delayed…until 2026!

“These proposals are obviously very far apart,” Chutkan said Monday. “Neither of them is acceptable.”

Chutkan said that Trump will have to prioritize the trial and that she would not change the trial schedule based on another defendant’s professional obligations, for example a professional athlete’s.

The public has an interest in the fair and timely administration of justice, Chutkan said. Trump’s lawyer said going to trial next year would violate Trump’s rights, noting the millions of pages of discovery material that prosecutors have turned over.

“This is a request for a show trial, not a speedy trial,” Trump lawyer John Lauro said of the special counsel’s proposed schedule. “Mr. Trump is not above the law, but he is not below the law.”

After Chutkan ruled, Lauro stood to make an objection on the record and state that Trump’s defense team will not be able to adequately represent its client with that trial date. Chutkan noted his objection and moved on.

Earlier in the hearing, Chutkan said that while the special counsel team’s proposal was too soon, Trump’s proposal of 2026 was not reasonable. “Discovery in 2023 is not sitting in a warehouse with boxes of paper looking at every single page,” Chutkan said.

“This case is not going to trial in 2026,” Chutkan said. She said Trump’s team has had time to prepare already; the public has known about the existence of the grand jury investigating Trump since September, and the identity of many of the witnesses has been known.

In Chutkan’s court, and others hearing cases alleging election interference by Trump and his co-conspirators, defense lawyers are smugly (because how else does a Trump lawyer ever do anything?) letting it be known that their clients couldn’t possibly be guilty of a crime because they honestly believed that the election had been compromised. This is even a point in a California state bar complaint against John Eastman. As Jennifer Rubin reported in the Washington Post,

At a critical hearing last week in the California bar proceedings, designated legal expert Matthew A. Seligman submitted a 91-page report, which I have obtained from the state bar, that strips away any “colorable,” or legally plausible, defense that Eastman was acting in good faith in rendering advice to the now four-times-indicted former president Donald Trump.

This report has serious ramifications for Eastman’s professional licensure and his defense in Georgia. Moreover, his co-defendant and co-counsel in the alleged legal scheme, Kenneth Chesebro, who has employed many of the same excuses as Eastman, might be in serious jeopardy in his Oct. 23 trial. (Another lawyer, Sidney Powell, also requested a speedy trial.)

In his report, Seligman addressed whether “the legal positions advanced by Dr. John Eastman in relation to the counting of electoral votes for the 2020 presidential election” were reasonable. Specifically, he assessed whether — as Eastman, Chesebro and others posited — Mike Pence, as vice president, had “unilateral authority to resolve disputes about electoral votes or to take other unilateral actions with respect to the electoral count” or could “delay the electoral count for a state legislature to take action with respect to a state’s electoral votes and whether a state legislature may lawfully appoint electors after the electoral count commences.”

Seligman reviewed the 12th Amendment, the Electoral Count Act of 1887 and “centuries-long practice by Congress” to find that the Eastman positions were so devoid of support that “no reasonable attorney exercising appropriate diligence in the circumstances would adopt them.” In essence, Seligman strips away the pretense that Eastman (and, by extension, Chesebro) engaged in routine legal work.

(snip)

Seligman’s damning report might well determine the outcome of Eastman’s bar proceedings. However, the implications of the report extend well beyond Eastman’s law license. For example:

If Eastman engaged in a bad-faith scheme to overthrow the election, then he (and presumably other co-defendant lawyers) lacked any colorable defense under federal law and therefore cannot remove their case to federal court.

If Eastman engaged in a bad-faith scheme to overthrow the election, none of his or other lawyers’ conversations are protected under the ambit of the First Amendment any more than a memo explaining how to break into a bank would be.

If Eastman engaged in a bad-faith scheme to block the certification of the election, then one could conclude he and others in the alleged “criminal enterprise” had the requisite criminal intent for state charges including a state racketeering charge.

The significance of stripping away the legal plausibility of the cockamamie scheme to undermine our democracy cannot be overstated.

It’s that “undermining our democracy” part that should be most alarming – to us all. But I don’t think it is, to many of us – certainly not, it seems, to the people who showed up at the arena in Milwaukee this week for the first “debate” among candidates for the Republican presidential nomination. As Will Bunch wrote in the Philadelphia Inquirer,

As the night dragged on, the only “issues” the crowd seemed jazzed about were brash challenges to scientific truths that it considers elite liberal pieties — like [Vivek] Ramaswamy’s false claim that climate change solutions have killed more people than climate change — or authoritarian vows of violence, like Ron DeSantis’ promise to render any drug dealers at the border “stone cold dead.” None of the eight people on that stage “won” — only Trump, his angry mob, and a 21st-century brand of American fascism that is the enemy of democracy, the writing on the wall.

(snip)

America is entering its most important, pivotal year since 1860, and the U.S. media is doing a terrible job explaining what is actually happening. Too many of us — with our highfalutin poli-sci degrees and our dog-eared copies of the late Richard Ben Cramer’s What It Takes — are still covering elections like it’s the 20th century, as if the old touchstones like debates or a 30-second spot still matter.

What we are building toward on Nov. 5, 2024, might have the outward trappings of an election, but it is really a show of force. What we call the Republican Party is barely a political party in any sense of the word, but a dangerous antisocial movement that has embraced many of the tenets of fascism, from calls for violence to its dehumanizing of “others” — from desperate refugees at the border to transgender youth.

There is, in reality, no 2024 primary because this movement embraced its infallible strongman in Trump eight years ago. And there is no “Trump scandal” because — for them — each new crime or sexual assault is merely another indictment of the messenger, the arrogant elites from whom their contempt is the number one issue. These foot soldiers stopped believing in “democracy” a long time ago — no matter how big an Orwellian sign Fox News erects.

If you watch enough not-Fox cable TV news, you’ll occasionally see an expert on fascism like New York University’s Ruth Ben-Ghiat or Yale’s Timothy Snyder explaining the roots of this American authoritarianism, or you can read a piece like Margaret Sullivan’s Guardian take on the fascist appeal of Trump-clone Ramaswamy. But then it’s back to your regular programming, including a desperate desire to frame today’s clash in the context of long-lost 20th-century democratic norms, and to blame any transgressions on a mysterious “tribalism” that plagues “both sides.”

(snip)

I’ve been inside and outside of Trump rallies in Hershey and West Chester and Wildwood, and what I learned is that the only issue that matters isn’t an issue at all, but their contempt for the media outlets like CNN they believe look down on them and their savior.

(snip)

It was so revealing Wednesday night when Fox News launched its debate coverage by playing a snippet of Oliver Anthony’s No. 1 hit, the blue-collar populist rant “Rich Men North of Richmond,” with its mix of anti-government elitism and a downward punch at welfare recipients. It felt like the Fox message was, “We’re not comfortable talking about what’s really happening with the white working class in America, so we’re just going to turn it over to this angry singer with the big beard.”

The news media better get comfortable talking about what is really happening in places like Anthony’s Farmville, Va. They ought to be explaining both the legitimate anger voiced by the singer’s lament over working overtime hours for low pay, the manipulation of that anger by demagogues like Trump, and the uncomfortable questions about how much of the rage is over threats to outdated and detestable hierarchies of white supremacy and the patriarchy.

(snip)

These are the stakes: dueling visions for America — not Democratic or Republican, with parades and red, white, and blue balloons, but brutal fascism or flawed democracy. The news media needs to stop with the horse race coverage of this modern-day March on Rome, stop digging incessantly for proof that both sides are guilty of the same sins, and stop thinking that a war for the imperiled survival of the American Experiment is some kind of inexplicable “tribalism.”

We need to hear from more experts on authoritarian movements and fewer pollsters and political strategists. We need journalists who’ll talk a lot less about who’s up or down and a lot more about the stakes — including Trump’s plans to dismantle the democratic norms that he calls “the administrative state,” to weaponize the criminal justice system, and to surrender the war against climate change — if the 45th president becomes the 47th. We need the media to see 2024 not as a traditional election, but as an effort to mobilize a mass movement that would undo democracy and splatter America with more blood like what was shed Saturday in Jacksonville. We need to understand that if the next 15 months remain the worst-covered election in U.S. history, it might also be the last.

Court rejects race-based solution for race-based unfairness…hopes for the best

It’s no easy trick to find a way for a society to accept responsibility for the wrongs of the past that will satisfy everyone as being fair and effective. In today’s America, we can’t even agree that “we” have such a responsibility, much less concur on how we can make a good faith effort to address the injustices suffered by the generations of Black Americans since the early 17th century.

Three generations ago America made an effort when Congress passed the Civil Rights Act and the Voting Rights Act. But many felt more was needed, and as Jerome Karabel explains in today’s New York Times, “In a historic commencement address at Howard University on June 4, 1965, President Lyndon Johnson laid out the intellectual and moral basis for affirmative action.”

Speaking less than a year after the passage of the Civil Rights Act and two months before the passage of the Voting Rights Act, he invoked a metaphor that remains resonant 50 years later: “You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘You are free to compete with all the others,’ and still justly believe that you have been completely fair.”

Affirmative action – race-based preferences in education, hiring and more – have been an attempt to correct historic race-based mistreatment. Karabel says “After a brief honeymoon of public support, affirmative action was met with a powerful backlash, and the policy has been under attack ever since. Decades of lawsuits and legislation have chipped away at the use of racial preferences. And now, in a 6-to-3 decision, the Supreme Court has consigned them to the grave.”

From the Washington Post:

The Supreme Court on Thursday held that admissions programs at Harvard and the University of North Carolina that relied in part on racial considerations violate the Constitution’s guarantee of equal protection, a historic ruling that will force a dramatic change in how the nation’s private and public universities select their students.

The votes split along ideological grounds, with Chief Justice John G. Roberts Jr. writing for the conservative members in the majority, and the liberals dissenting. While the ruling involved race-conscious programs at Harvard and UNC, it will affect virtually every college and university in the United States.

“The student must be treated based on his or her experiences as an individual — not on the basis of race,” Roberts wrote, joined by Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett. “Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.”

Roberts said the admissions programs at Harvard and UNC “lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.”

But he added that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”

(snip)

In a lengthy dissent, Justice Sonia Sotomayor, the court’s lone Latina justice, wrote that it is “a disturbing feature of today’s decision that the Court does not even attempt to make the extraordinary showing required” to reverse precedent [of previous court rulings supporting affirmative action].

Sotomayor, who has said her own life is an example of how affirmative action programs can work, spoke at length from the bench on Thursday, a tactic justices use to mark their profound disagreement with a decision.

“Equal educational opportunity is a prerequisite to achieving racial equality in our Nation,” she wrote, joined by [Justice Ketanji Brown] Jackson and Justice Elena Kagan.

“Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits,” Sotomayor’s dissent said. “In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”

As Jackson put it, “With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life.”

If it can find that race can’t be a factor in college admissions, it should only a matter of time before the court expands that reasoning to include private business, and to say that considerations of race – in the form of diversity, equity and inclusion initiatives – are also unconstitutional.

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