Tag Eric Tucker

This is not your Founding Fathers’ America

Pat Ryan Leave a comment

When we feel our treatment by our rulers has become so intolerable, so unjust – so inhumane – that we must declare our independence among the peoples and nations of the world, it just makes sense that we should explain to the rest of the world why we are doing it.  Here goes.

–Pat’s paraphrase of the preamble to the Declaration of Independence

The Founding Fathers then laid out the Declaration of Independence of the 13 “united States of America” which included the self-evident truths of the “unalienable” rights that they believed are the birthright of all humans.  Point by point, they laid out their grievances against George III and insisted they had made every good faith effort to resolve differences peacefully.  They explained that they had appealed to the goodness and mercy of “our British brethren” to end the mistreatment from which they suffered, but found them unresponsive.  And in light of those facts, they declared to the world that they and their fellow Americans were going into business for themselves.  The war that had begun the previous year was concluded by treaty in 1783; by 1787 a new Constitution of the United States was approved on behalf of the people of the new nation “in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity…”.

That legal framework set out principles to guide our development and our lives, including the principle that no man is above the law.  That idea had a pretty run there, right up until last Monday when the Supreme Court of the United States decided that presidents and former presidents of this great country were effectively kings or queens.  And despots, if they choose to be.

Immunity from prosecution.  The Justice Department has a policy that no sitting president can be prosecuted while in office, but there was no law that said that, and nothing explicit in the Constitution says a former president is immune from prosecution for officials acts taken while in office.  The high-minded concept was that a president was a person given certain powers to exercise – temporarily – on behalf of his country and in its best interests, and who would then return to his life as a regular citizen.  Would President Gerald Ford have granted Richard Nixon a pardon after his resignation over Watergate crimes if anyone had thought that the former president was immune from prosecution?  No one before has ever had the temerity to claim he had immunity from prosecution…or quite frankly, the need for immunity…before you know who.

A man made famous as much for his over-use and abuse of the legal system as for his dubious business skills that necessitated all the suing and threats of suing had nothing to lose and everything to gain (and no shame) by making an unsupported legal claim that had the desired effect of delaying his trial on felony charges of trying to overturn the legitimate results of the 2020 election.  The trial court judge hearing this case rejected the claim of immunity, so did a unanimous panel of the U.S. Court of Appeals.  The Supreme Court…well, the Supremes (1) surprised many when they agreed to hear the case at all, causing a delay until (2) they heard oral arguments April 24 and then (3) “deliberated” the rest of April, all of May and all of June – more than nine weeks – before issuing the ruling.  Guess it takes a while to create a whole new right not found in the Constitution, especially when you had said yourself, under oath, that such a right did not exist:

https://twitter.com/AccountableGOP/status/1808191057236000975
https://twitter.com/AccountableGOP/status/1807835389865951253
https://twitter.com/AccountableGOP/status/1807855254006124944

Hmmm…same folks who said Roe v. Wade was settled precedent. Interesting…

The idea proposed by Trump lawyers in oral arguments was that immunity is needed to protect former presidents from being corruptly prosecuted by their successors; whether or not that is true, there was no such right in the Constitution until this court created it with this ruling.  When was the last time you saw a former president pursued in the legal system by a previous president?  (If you said Biden is doing it to Trump right now, that is the wrong answer; he’s not.)  You haven’t seen it before: not even the lawless Trump went after Barack Obama or his other predecessors!  The assertion that this is a real and dangerous prospect is based on nothing in law or custom or history; it is a projection from Trump’s narcissistic personality disorder wherein he knows what he wants to do to Joe Biden and to every other perceived enemy, and his fevered brain assumes that’s how everyone else operates, too.

Not only did the court create a right that wasn’t there (don’t you just hate those activist judges that Republicans have been warning us about?) but, as argued by Thomas Wolf of the Brennan Center for Justice, “The Court has created an elaborate system of ambiguous rules that will not only ratchet up the complexity of the case against Trump but also erode the checks on presidential illegality. It is both a roadblock to prosecution and an encouragement to more insurrection.”

The procedures the Court has crafted to go with [the new rule] are pitched in Trump’s favor. Whenever the case returns to Judge Tanya Chutkan’s trial court, Trump will be presumed immune by default; the burden will be on the prosecution to establish that he isn’t. The Court’s definition of “official acts” cuts extremely broadly, stretching to “the outer perimeter of [Trump’s] official responsibility.” (The Court refused to say exactly where that perimeter ends.) The prosecution must show that prosecuting Trump for those official acts “would pose no dangers of intrusion on the authority and functions” of the presidency (emphasis added). The prosecution won’t be able to claim an official act was “unofficial” because of the president’s motives for doing it. (emphasis added) And Trump can seek another round of appellate review if the trial court doesn’t rule him immune. Should the government clear these hurdles, it won’t be able to use the “testimony or private records of [Trump] or his advisors” about official acts to prove his guilt. (emphasis added)

The Court justifies all this new complexity as necessary to protect imaginary future presidents from imaginary future prosecutions. It does not, critically, justify it as a response to the acts of the real and credibly accused former president in the case before it. Just as members of the Court’s conservative supermajority consistently steered the conversation at oral argument away from Trump’s charges, they do not even try to grapple with the bigger implications of applying their new rule to the case in front of them or the consequences if their rule ultimately lets Trump skate. Instead, the Court bows out of the case with the tidy but myopic claim that it “cannot afford to fixate exclusively, or even primarily, on present exigencies,” lest “transient results” threaten “the future of our Republic.”

The Court doesn’t engage with the ramifications of its opinion, because it can’t — at least not without exposing the fundamental bankruptcy of the whole edifice it has just built. The majority’s ruling cannot possibly be the rule for any functioning democracy. Trump has been charged with attempting to overthrow the election that threw him out of office. Any rule that would grant a president immunity for that crime would remove the principal check on presidential abuses of authority in our democratic system: the vote. And it would encourage other losing candidates to try the same in future elections. (emphasis added)  It is in this sense that the Court’s opinion is truly lawless. It does not merely invent constitutional rules that are antithetical to our founding commitments or enduring values. It threatens to free presidents from the constraints of law and democracy. And it paves the way for future presidents to try to make good on the most antidemocratic of all propositions: might makes right.

In reaching to resolve future imagined cases of presidential criminality while downplaying the actual criminality before it, the Court has imperiled accountability for Trump’s wrongs. It has done severe violence to our law. And it has left our democracy exposed.

Look at what Trump did while president – I mean, just the things we know he did – when there was no presumption of immunity from later prosecution; just what the hell do you think he’ll do next time if given the chance?   What about his calls for televised military tribunals of Liz Cheney and other enemies?  Immunity!  What about all the assaults on our system being planned by his supporters behind Project 2025?  Immunity!

And what about this threat from the president of the Heritage Foundation that “We are in the process of the second American Revolution, which will remain bloodless if the left allows it to be.”?  Uh, do what we want and you won’t be hurt?  Really?

And this whole depressing development comes on the heels of a televised “debate” in which we saw one candidate for president lie his ass off for 90 minutes and the other look like an elderly deer caught in the headlights; Biden is now telling Democratic governors he’s fine but needs to stop working by 8 p.m.  I got the feeling this is going to get even weirder.

Seatbacks in the upright and locked position, please; we’re about to encounter some (more) turbulence

Pat Ryan Leave a comment

If you were thinking that someday the chickens of justice would come home to roust, probably in that thing on the top of Donald Trump’s head, then today could be the day they start.  Very excited at the news of the first indictments in special prosecutor Robert Mueller’s investigation and of charges against three people, including a guilty plea that ties the Trump presidential campaign to Russian attempts to influence the election.  En garde!

One-time Trump campaign chairman Paul Manafort and his longtime business partner Rick Gates are named in indictments alleging felony conspiracy, but the indictments make no reference to the presidential campaign nor any reference to coordination between the campaign and Russia.  Up front, let’s remember that an indictment is not proof of a crime, and that Manafort and Gates both pleaded not guilty to the charges today.  But let’s remember as well that an experienced and skilled investigator and prosecutor like Mueller doesn’t go the grand jury with charges without having a strong case.  (Yes, yes, I know about grand juries and ham sandwiches, but still.)  Also, we should have faith that this is just the first public step in a well-developed-and-researched case(s), not the last.

Why was it again that Manafort was the former campaign chairman?  Oh yeah, because he was fired from the campaign after it was learned he’d received more than $12 million in payments from a former president of Ukraine, a pro-Russia politician whom he had worked with for years, that he had failed to disclose.  And for what has he been indicted?  Conspiracy against the United States of America, conspiracy to launder money, and more.

I believe in giving credit where it’s due, especially in areas where it rarely ever is: the president was accurate when he tweeted this morning that the indictments of Manafort and Gates make no reference to the Trump campaign, nor do they allege wrongdoing in relation to the campaign.  Now, on the other hand (you saw this coming), he tweets that as if it’s all that needs to be said ever again on the topic, as if that proves the ultimate innocence of Trump, and all the Trumpets, and the campaign, of all the Russia allegations, and then (of course) uses it as a springboard (again) to suggest the real investigation should be aimed at Hillary Clinton.  (Heavy sigh.)

But he offers no comment at all on the rest of the indictment news, which I think is far more important on its face: the fact that former campaign foreign policy adviser George Papadopoulos pled guilty earlier this month to lying to the FBI in the Mueller probe, which is the “most explicit evidence [so far] connecting the Trump campaign to the Russian government’s meddling in last year’s election.”

Short version: Papadopoulos tried repeatedly to arrange a meeting between a London-based professor and Trump campaign officials…because he was told by the professor in April of 2016 that the Russians had “dirt” on Clinton in the form of thousands of emails, at a time long before the hacks of the Democratic National Committee and Clinton’s campaign were public knowledge…and then he lied to the FBI about how valuable he considered the professor but now acknowledges he knew then that the professor had “substantial connections” to Vladimir Putin’s government.

It’s unbecoming for a graying, overweight man in his 60s who is not Santa Claus to be giddy, but I’m right on the edge of that with today’s news.  Mueller is ready to start showing his cards, and I trust that he (a) is smart enough to believe he has the goods, and (b) has all the ducks properly aligned, before he starts to deal the cards.  Charles Pierce has the same feeling: this is just the beginning, or as he puts it, the snowball has started to roll downhill:

For a while on Monday, whomever in the White House is charged with the task of hiding the presidential* telephone had done a fairly good job. The president*’s Twitter account was rigged for silent running. Republican congresscritters also were maintaining a discreet distance in the immediate aftermath of the news. (Congressman Sean Duffy of Wisconsin popped up on Three Dolts On A Divan to say “dossier,” “Hillary,” and “uranium” a few times, but his heart didn’t seem to be in it.)

At the very least, it would seem to me, Republican congressional leaders ought to be forced to take a position as to what they would do if the president* fired Robert Mueller now that the first shoe has dropped. This should be an easy one, of course, but there is that tax bill to pass, and all that money to shove upwards to the donors, so obligations to the Constitution can wait.

This isn’t going to go like a Perry Mason murder trial, where the real killer suddenly feels remorse and rises to confess the whole thing.  Trump won’t go away easy; we can expect he’ll resist every step of the way because he still believes he’s smarter and luckier (and richer, and better looking) than everyone else.   And of course, there’s the general understanding that he will lie…about everything, as he has done, even when lying doesn’t help his cause.  He operates as if he firmly believes that everyone accepts everything he says as gospel because, well, because it’s him saying it; the fact that he is often wrong and contradicts himself is apparently irrelevant to the true believers.  Now, that was probably a good bet to be true when he lived in a universe wholly populated by people dependent on him for their financial well being.  For the rest of us, the vast majority of the world’s people who don’t have a financial relationship with Trump, it’s annoying and pathetic.  But we know it’s coming, so we’ll deal with it.

Despite the agony I imagine the president will put the country through, I admit I relish the thought of that day when we’ll get to see this guy go up in flames.  But it won’t be tomorrow…author Kevin Kruse (@KevinMKruse) tweeted a reminder earlier today that it was almost two years between the first Watergate-related indictments (of the Watergate burglars) and Richard Nixon’s resignation.  And it was close to the end of that period before the Republican Congressional leadership moved past their private disgust and went public with their opposition to the president of their own party.

There’s no encouraging reading yet on how far the Republicans who control Congress today will let this go before publicly standing up to the White House.  You’d like to think they’d already be taking a stand against a good bit of what Trump has been doing, but as Pierce noted, there are still rich Americans in desperate need of tax cuts, which means Republicans have some pipers to pay before they can stand up for America.