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It ain’t over unless we let it be

Pat Ryan 1 Comment

The tariff fetishist is starting a trade war with our friends and our foes, and it’s going to mean higher prices for you and me, just as predicted by all sane economists. But he says he “couldn’t care less.”

The leader of the free world is trashing his country’s friendly relations with neighbors and threatening a new era of manifest destiny that is forcing some world leaders to publicly acknowledge they cannot trust America to be a loyal friend and ally. (But TFG suddenly changes his tune when one of them calls him on it.)

The chief of the executive branch of government authorized what amounts to a group of consultants to fire government employees and carry out cuts to government budgets, none of which has been authorized by the legislative branch which is suddenly incapable of protecting its own lawful perogatives. The action is sloppily conceived and largely illegal, and being sold to the public as fulfillment of a campaign promise to lower the cost of government…with hopes it will also clear financial objections to a planned upcoming extension of tax cuts for wealthy Americans. (And today he attacked unions representing federal employees.)

The champion of law and order is allowing the illegal kidnapping of people from American streets and having them held in secret, people whose “crime” was lawfully expressing an opinion contrary to the president’s or appearing to be an undesirable. And the guy who has never shut up about the alleged “weaponization” of the U.S. Justice Department by his political enemies to persecute him has installed an acting U.S. Attorney for the District of Columbia who is accused of threatening his political opponents and supports the president’s ludicrous calls to impeach judges who rule against questionable Trump policies. And, the president has brazenly used government authority to intimidate lawyers and law firms from daring to oppose his actions or represent anyone who does. Or who has at any time in the past. (The highly-respected conservative jurist Michael Luttig believes Trump will ultimately lose his legal fight against the courts; long-time federal trial attorney and columnist Sabrina Haake hopes the chief justice gets a chance to get specific about what presidential actions don’t qualify for immunity.)

The man who harshly criticized a previous president’s use of executive orders as a “power grab” is doing all this through an unprecedented wave of executive orders that is apparently not a power grab at all. Dan Balz sees it as evidence of Trump’s desire to rule rather than to govern: he can’t be bothered waiting for a Congress (that is already controlled by the party he controls) to pass laws when he can act as king and simply issue edicts.

Is all of this part of the MAGA plan? Is all of this what those Americans wanted to have happen, or expected to happen, when they re-elected him? For many of us who did not vote for him, there is a tendency to feel some level of helplessness, which I think is at least part of the administration’s intent with the non-stop pace of activity. But Timothy Noah reminds us that we don’t have to give up.

Surveying this Boschian hellscape, many good people will despair. Yes, Trump is much more dangerous than he was during his first term (which was harrowing enough). He’s more giddily reckless about impounding funds, shutting down agencies, disobeying court orders, and using the government to punish political enemies. But if you allow yourself to tune out this ugliness, you might as well have voted for the man. The president is counting on such demoralization.

(snip)

How can ordinary citizens fight back? To scout the best approaches, I canvassed activists, lawyers, scholars, politicians, and union leaders for advice. Some of what they suggest will lie beyond your abilities, expertise, financial resources, or sense of personal safety—in which case, choose something you can do. Just about everyone I spoke to emphasized that there is no silver bullet—no single arena, not even the courtroom, where Trump’s illegal power grab can be stopped. “There’s no messiah” who will “sweep in and make everything better,” said Randi Weingarten, president of the American Federation of Teachers. That’s up to you and me. The good news is there are a lot of us.

Indeed, there may be even more than we can know just yet. Because Trump isn’t careful about whose interests he acts against, Resistance 2.0 has potential to evolve into a bipartisan movement. “Successful authoritarian regimes determine what their winning coalition is,” observed Leah Greenberg, co-founder of the resistance nonprofit Indivisible, “and then they work very hard to keep that coalition together.” Trump lacks such discipline, and as a result he frequently screws over natural allies.

Trump alienates the military by installing as defense secretary Pete Hegseth, a boozer and womanizer who called an officer of the Judge Advocate General’s Corps a “jagoff” and, after he was confirmed, fired the top JAG officers in the Air Force, Army, and Navy. Trump alienates Big Pharma by installing as health and human services secretary a recovering heroin addict, womanizer, and (according to his cousin Caroline Kennedy) “predator” who less than two years ago said, “There’s no vaccine that is, you know, safe and effective.” As HHS Secretary, Robert F. Kennedy Jr. recommends treating measles with cod liver oil and letting bird flu spread unchecked through poultry flocks. Trump Treasury Secretary Scott Bessent says, “I’m not worried about inflation,” and “access to cheap goods is not the essence of the American dream.” Trump, meanwhile, terrorizes Wall Street with market-killing tariffs and stray threats not to honor the national debt.

No matter who joins this fight, it won’t be won next week, or next month. Barring impeachment and removal, Trump will be president for four long years, and not even his allies expect him to become less authoritarian and kleptocratic. So pace yourself. But the sooner you join in, the more effectively we can limit the damage.

The article goes on to outline a number of ways that each of us can do something, the best each of us can, to be part of the resistance, from protests to lawsuits to just staying informed. Don’t give up: the fight isn’t over.

Courting trouble for the former guy

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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.