Bill Blum

Trump's unique brand of American fascism is still haunting us

Donald Trump was no ordinary conservative American president. Far from it.

But how should we describe his presidency and the Make America Great Again political movement he spawned? Is it sufficient to refer to Trump and his MAGA supporters as anti-democratic or authoritarian, as many in the liberal mainstream press have written for the past five years?

I don't think so.

I believe that is a wholly inadequate and ultimately self-defeating response. We cannot afford to label Trump as just another demagogue or to refer to the MAGA movement as just another rightwing populist upsurge if we hope to preserve American democracy.

It's past time to call Trump and his movement what they are: fascist.

Trump was the first American fascist president. And he remains a fascist to this day.

I was among the first opinion writers to expose the unique dangers Trump posed to democracy and the rule of law. I was among the first to refer to him explicitly as a fascist. I was also among the first commentators to report on the views of leading mental health-experts who described Trump as a malignant narcissist.

I sounded these warnings in opinion columns, beginning in 2015, published by such outlets as Truthdig, The Progressive Magazine, AlterNet, Raw Story, Salon, The National Memo, Bill Moyers.com, and many others.

What is Fascism?

Any rational discussion has to begin with a definition, and when it comes to fascism, there are many to examine.

Although it is an emotionally loaded and often misused term, fascism is as real today as a political and cultural force, a set of core beliefs and a mode of governance as it was when Benito Mussolini founded the Italian Fascist Party in 1919 and declared himself dictator six years later.

As the celebrated Marxist playwright Bertolt Brecht wrote in 1935, fascism "is a historic phase of capitalism … the nakedest, most shameless, most oppressive and most treacherous form of capitalism." Trumpism, along with its international analogs in Brazil, India and Western Europe, neatly accords with Brecht's description.

Another instructive definition is the one proffered by political scientist Robert Paxton in his classic study "The Anatomy of Fascism" (Harvard University Press, 2004):

"Fascism may be defined as a form of political behavior marked by obsessive preoccupation with community decline, humiliation, or victimhood and by compensatory cults of unity, energy, and purity, in which a mass-based party of committed nationalist militants, working in uneasy but effective collaboration with traditional elites, abandons democratic liberties and pursues with redemptive violence and without ethical or legal restraints goals of internal cleansing and external expansion."

Trump and Trumpism similarly embody the 14 common factors of fascism identified by the great writer Umberto Eco in his 1995 essay, Ur Fascism

  • A cult of traditionalism.
  • A rejection of modernism (cultural, rather than technological).
  • A cult of action for its own sake and a distrust of intellectualism.
  • A framing of disagreement or opposition as treasonous.
  • A fear of difference. … Fascism is racist by definition.
  • An appeal to a frustrated middle class—either due to economic or political pressures from both above and below.
  • An obsession with the plots and machinations of the movement's identified enemies.
  • A requirement that said enemies be simultaneously seen as omnipotent and weak, conniving and cowardly.
  • A rejection of pacifism. Life is permanent warfare.
  • Contempt for weakness.
  • A cult of heroism.
  • Hypermasculinity.
  • A selective populism, relying on chauvinist definitions of "the people" that it claims to speak for.
  • A heavy usage of Newspeak—impoverished vocabulary, elementary syntax and a resistance to complex and critical reasoning.

Nor is fascism a foreign phenomenon restricted to South American banana republics or failed European states. As University of London professor Sarah Churchwell explained in a June 22, 2020 essay published in the New York Review of Books, fascism has deep roots in the United States, spanning the decades from the resurgence of the Ku Klux Klan in the 1920s to the rise of the German-American Bund in the 1930s, the ascendance of Depression-era demagogues like Huey Long, and the election of Trump in 2016.

Churchwell's article is aptly titled, "American Fascism: It Has Happened Here." In it, she offers a working definition of fascism, noting that fascist movements, both past and present in America and abroad, are united by "conspicuous features [that] are recognizably shared." These include:

"[N]ostalgia for a purer, mythic, often rural past; cults of tradition and cultural regeneration; paramilitary groups; the delegitimizing of political opponents and demonization of critics; the universalizing of some groups as authentically national, while dehumanizing all other groups; hostility to intellectualism and attacks on a free press; anti-modernism; fetishized patriarchal masculinity; and a distressed sense of victimhood and collective grievance. Fascist mythologies often incorporate a notion of cleansing, an exclusionary defense against racial or cultural contamination, and related eugenicist preferences for certain 'bloodlines' over others."

Trump's Unique Brand of American Fascism

Looking back on the anti-immigrant rhetoric and scapegoating Trump used in the 2016 presidential campaign, we can see these features at work. We can also see them in his desperate efforts to retain power after losing the 2020 presidential election, in the January 6 insurrection and in his continued adherence to the "big lie" of the stolen election. These are only some of the most obvious signposts of a new American form of fascism.

The good news is that more and more influential voices have come to realize and recognize Trump as a fascist.

In a January 2021 Newsweek article, Professor Paxton wrote:

"I resisted for a long time applying the fascist label to Donald J. Trump. He did indeed display some telltale signs. In 2016, a newsreel clip of Trump's plane taxiing up to a hangar where cheering supporters awaited reminded me eerily of Adolf Hitler's electoral campaign in Germany in July 1932, the first airborne campaign in history, where the arrival of the Führer's plane electrified the crowd. Once the rally began, with Hitler and Mussolini, Trump mastered the art of back-and-forth exchanges with his enraptured listeners. There was the threat of physical violence ("lock her up!"), sometimes leading to the forceful ejection of hecklers. The Proud Boys stood in convincingly for Hitler's Storm Troopers and Mussolini's squadristi. The MAGA hats even provided a bit of uniform. The America First" message and the leader's arrogant swagger fit the fascist model….

"Trump's incitement of the invasion of the Capitol on January 6, 2020 removes my objection to the fascist label. His open encouragement of civic violence to overturn an election crosses a red line. The label now seems not just acceptable but necessary."

In a July 2021 article in The Atlantic, David Frum, a longtime Republican and former speechwriter for George W. Bush, put it this way:

"Trump's no Hitler, obviously. But they share some ways of thinking. The past never repeats itself. But it offers warnings. It's time to start using the F-word again, not to defame—but to diagnose."

Psychologist Mary Trump, the disgraced ex-president's niece, unabashedly uses the fascist label to describe her uncle, referring him as such in a September 2021 interview with Business Insider:

"He is a fascist. But he probably doesn't know what fascist means.

"He thinks he deserves all the power in the world just because of who he is. In his mind, he's always at the center of the universe and thinks he should be deferred to even though he's ignorant, the weakest, and the least intellectually curious person I've ever met."

It's time for more of us to recognize, denounce and reject Trump and his most ardent and violent MAGA acolytes for what they: a fascist plague that threatens everything we hold near and dear.

Trump's post-presidency legal woes are multiplying fast

This story was first published at The Progressive.

The legal noose is tightening around Donald Trump's neck. Although we are still far from seeing the former commander-in-chief outfitted in a prison jumpsuit, Trump faces legal jeopardy on a variety of fronts related to his long history of corruption in the private sector and his malfeasance as President. And make no mistake: as Trump runs out of cards to play, the jeopardy becomes less and less of a political game he can spin in his favor. Things are getting serious.

Several recent developments have improved the odds that Trump will be brought to justice.

"If a hit man is hired and he kills somebody, the hit man goes to jail. But not only does the hit man go to jail, but the person who hired them does."

On July 1, the Trump Organization and its former Chief Financial Officer, Allen Weisselberg, were indicted by Manhattan District Attorney Cyrus Vance Jr. for tax fraud, grand larceny, and conspiracy.

While Trump has not yet been charged individually, the indictment refers to an "unindicted co-conspirator" who allegedly "agreed to and implemented" Weisselberg's tax evasion scheme. Since little happens in Trump's financial empire without his knowledge and consent, the reference points to Trump, who could well be named as a defendant in the near future by way of an amended indictment.

Attorney General Letitia James has joined Vance's criminal probe, fortifying the courtroom firepower arrayed against Trump. In 2019, James opened a separate civil investigation of Trump's business practices that could result in significant fines and the formal dissolution of the Trump Organization.

In addition, Fulton County, Georgia, District Attorney Fani Willis has convened two grand juries to investigate Trump for pressuring the Georgia Secretary of State to overturn the results of the 2020 election. In March, Willis reportedly hired attorney John Floyd, a nationally recognized authority on racketeering and conspiracy law, to advise her on the probe.

Even if Trump manages to dodge personal liability in New York and Georgia, he will hardly be in the clear. First and foremost, he will find himself squarely in the crosshairs of the House Select Committee to Investigate the January 6 Attack on the United States Capitol. The committee was established to report on the causes and consequences of the insurrection that delayed and nearly prevented Congress from certifying Joe Biden's victory in the Electoral College.

The committee held its first public session on July 27, featuring dramatic testimony from four law enforcement officers (two from the Capitol Police and two from the District of Columbia's Metropolitan Police Department) who defended Congress against the violent mob of MAGA rioters that stormed the Capitol on January 6. Together, they recounted the horror, brutality, and racism of the rampage, laying the blame for the event squarely on Trump and his high-level enablers.

As Capitol Police officer Harry Dunn told the committee: "If a hit man is hired and he kills somebody, the hit man goes to jail. But not only does the hit man go to jail, but the person who hired them does. It was an attack carried out on January 6 and a hit man sent them. I want you to get to the bottom of that."

The select committee is equipped with subpoena power to fulfill Dunn's wishes.

In a July 28 interview with MSNBC's Ari Melber, former Watergate prosecutor Nick Ackerman said he believes the committee will use that power to subpoena and depose Trump, Rudy Giuliani, and Representative Mo Brooks, Republican of Alabama, who revved up the rioters on January 6 in speeches delivered before the assault on the Capitol. The committee, Ackerman said, will piece together a damning "jigsaw puzzle" to explain exactly what occurred on January 6.

"And they don't really have much of a defense here," Ackerman explained. "I think the more [the committee] can dig into the evidence showing that Trump and Rudy Giuliani and Brooks knew these people had come . . . looking for a fight—the more they can show what they were doing [was] inciting this riot. That's not going to fly well with [a] jury [in] the District of Columbia."

According to press reports, the committee is working on its future witness list and preparing to set a new round of hearings. And while it remains to be seen if Trump actually will be summoned, Representative Bennie Thompson, Democrat of Mississippi, the panel's chairman, has publicly stated the committee won't hesitate to call Trump, or officials from the Trump Administration, or members of Congress, such as Minority Leader Kevin McCarthy, Republican of California, and Representative Jim Jordan, Republican of Ohio, who spoke with Trump on January 6. Thompson has also vowed to go to court to enforce any subpoenas that are issued.

With or without Trump's testimony, the committee is likely to amass an unassailable record of the former President's part in inciting the insurrection, setting the stage for a referral to the Department of Justice for possible prosecution.

In an encouraging sign that the DOJ is taking the investigation seriously, the department issued a set of letters late last month to former Trump Administration officials, informing that it would not invoke the doctrine of executive privilege to shield them from testifying before Congress about the Capitol attack.

In a similar vein, the DOJ's Office of Legal Counsel recently published a formal opinion, confirming that the Treasury Department and the Internal Revenue Service "must furnish" Trump's tax returns to the House Ways and Means Committee.

Compounding Trump's legal miseries further is the federal civil suit filed by Representative Eric Swalwell, Democrat of California, against Trump for inciting the insurrection. Swalwell's complaint, which also names Giuliani and Brooks as defendants, seeks both compensatory and punitive monetary damages, as well as a judicial declaration that the trio violated federal law.

In a court filing last week, the DOJ declined to intervene in the case and take on Brooks's defense, as it would in many lawsuits involving federal employees. In reasoning that also applies to Trump, the department explained that Brooks's involvement in the events leading up to the Capitol attack was beyond the scope and duties of his employment.

The DOJ is also moving forward with the prosecution of more than 500 Capitol rioters, some of whom have come to blame Trump for their conduct.

All of this is very bad news for the former President. The key now is to ramp up the pressure and persevere until Trump and the neo-fascist movement he represents are finally held to account.

The day the Supreme Court showed its disturbing new face

This story was first published by The Progressive.

The U.S. Supreme Court is not a democratic institution. It consists of nine unelected elite lawyers armed with the tools and techniques of judicial review. They, not "the People," often get the last word on vital questions of social, economic, and even political policy.

Whether this is a smart way to run a democracy has largely been a moot point since the court declared in Marbury v. Madison (1803) that it had the authority to find acts of Congress unconstitutional. The big question today, as always, is whether the court can operate in a politically neutral manner and stay above the partisan fray while discharging its awesome power.

Throughout much of the court's 2020 term, which commenced last October, it may have been plausible to believe that the high tribunal was charting a moderate course, even with six conservative Republican appointees at the helm. In the mainstream press, a middle-of-the-road consensus had emerged that the court was only incrementally moving to the right, and was by no means the threat that some observers had feared when Donald Trump hastily named Amy Coney Barrett to replace the late liberal icon Ruth Bader Ginsburg.

CNN legal analyst Joan Biskupic expressed the consensus well in a column posted online in mid-June, suggesting that rather than cleaving along partisan lines, the court was displaying more of a 3-3-3 alignment, with Chief Justice John Roberts joining Barrett and Brett Kavanaugh to establish a dominant center-right bloc.

The center-right alliance, Biskupic argued, was proving effective in checking the more extreme impulses of the tribunal's most doctrinaire members, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch.

No more.

Whatever validity the consensus may have had was obliterated on July 1, just before the court broke for summer recess, with the release of a stunning 6-3 majority opinion written by Alito in the case of Brnovich v. Democratic National Committee. The ruling tore another gaping hole in the Voting Rights Act of 1965 and signaled that the panel's rightwing ideologues were fully in control.

At issue in Brnovich was an Arizona statute that criminalizes the collection of mail-in ballots by third parties other than family members and caregivers (a practice called "ballot harvesting"), and a state regulatory policy that requires all in-person ballots, even provisional ones, to be invalidated if they are cast by voters outside of their registered precincts. Democrats contested both measures under Section 2 of the Voting Rights Act, which permits challenges to election practices that discriminate on the basis of race.

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Dividing along starkly political lines, Alito and his Republican colleagues handed the state a complete victory. Channeling GOP post-election talking points about nonexistent voter fraud almost word for word, Alito wrote that Arizona was justified in imposing the measures because of its "strong and entirely legitimate . . . interest in preventing election fraud," which, he asserted, "can affect the outcome of a close election" and "undermine public confidence in the fairness of elections."

"The Brnovich opinion," says Erwin Chemerinsky, dean of the law school at the University of California, Berkeley, "will greatly weaken the Voting Rights Act."

The opinion is especially bad when considered in context. "Eight years ago, in Shelby County v. Holder," Chemerinsky explains, "the court nullified provisions of the act [found in Sections 4 and 5] that required jurisdictions with a history of racial discrimination to obtain pre-approval" of changes to election procedures from either the Justice Department or a three-judge panel sitting in Washington, D.C.

"Had those preclearance provisions remained intact, many of the new suppression laws we're seeing in Georgia and elsewhere would never have been implemented," Chemerinsky says. "Now, the Supreme Court has made it harder for the U.S. Attorney General or others to sue the states under Section 2 when they pass laws that have a discriminatory impact on minority voters."

The court also handed down another ideologically tinged decision on July 1 with a 6-3 majority opinion written by Roberts in Americans for Prosperity Foundation v. Bonta. The decision struck down a California regulation that requires registered charities and nonprofits to disclose the identities of major donors (those contributing more than $5,000). Americans for Prosperity is a tax-exempt organization long linked to the Koch brothers. Critics of the decision charge that it will open the door to more "dark money" in elections.

The damage caused by the Roberts Court to democratic norms and values runs deep. Harvard Law School professor Michael Klarman summed up the panel's cumulative record under Roberts's stewardship in an essay published last February in The Atlantic:

"With their majority on the court, the Republican Justices have undermined labor unions, unleashed money in politics, protected corporations from class-action litigation and punitive-damage awards, curbed antitrust law, eroded the Constitutional right to abortion, invalidated gun-control measures, struck down voluntary efforts by school boards to achieve integration through race-conscious means, and threatened to abolish race-based affirmative action." (See sidebar for some of the Roberts Court's worst rulings.)

Klarman's assessment raises another crucial question: What, if anything, can be done to reverse the high court's lurch to the right?

In his article, Klarman called for expanding the number of Justices from nine to thirteen, with the four newcomers to be appointed by President Joe Biden while the Democrats control the Senate, albeit by the slimmest of margins. Such a move would create a center-left court that in Klarman's view would match the center-left orientation of the country as a whole.

Klarman sits on the advisory board of the progressive advocacy group Take Back the Court, founded in 2018 by San Francisco State University professor Aaron Belkin. The board is co-chaired by Harvard Law School professor Mark Tushnet and Color of Change board of directors chair Heather McGhee. It also includes CNN host W. Kamau Bell, former Federal Election Commission chair Ann Ravel, and Yale Law professor Samuel Moyn.

"The Supreme Court is broken," says Belkin, expounding on his organization's origin and purpose. "The court was stolen in 2016 when a vacancy opened after Antonin Scalia died, and Mitch McConnell and Senate Republicans would not allow President Obama to fill that vacancy with Merrick Garland."

Surveying the state of the nation in the aftermath of Trump's three high-court appointments and the chaos created by the forty-fifth President, he says, "American democracy is hanging by a thread."

And the Supreme Court, he argues, is a big part of the problem.

"For years now, the court has been sabotaging democracy on behalf of big corporations, the Republican Party, and the party's donor class," Belkin says. "With the retirement of Justice Anthony Kennedy in 2018, the entire regulatory administrative state has been placed at risk, throwing everything progressives care about, including the need to respond to the existential crisis of climate change, into jeopardy."

These are long-term trends, he stresses, rejecting suggestions that big changes at the court are unwarranted because of a handful of recent rulings that uphold LGBTQ+ rights, preserve Obamacare, and reject efforts to overturn the results of the 2020 presidential election. In the final days of this past term, the court also ruled in favor of the off-campus free speech rights of public high school students and sided with college athletes in a dispute with the NCAA that could eventually lead to athletes getting paid for their skills and hard work.

Belkin dismisses the idea that the court is best described as having a 3-3-3 split and a generally moderate orientation. "That's bullshit," he counters. "Even the most conservative court sometimes issues progressive rulings. But this remains an exceedingly pro-business court."

Indeed, a study released by the D.C.-based Constitutional Accountability Center in early July found that corporate interests prevailed in 83 percent of business-related cases this past term. Says Belkin, "The court is doing the same thing today that it's been doing for a generation, which is rigging the system and compromising democracy on behalf of the GOP."

Belkin understands the uphill nature of the fight to expand the court, but he's used to uphill battles. He was a leader in the gay rights campaign to overturn the military's "Don't Ask, Don't Tell" policy, a struggle that took more than ten years to succeed.

"When we started Take Back," he says, "hardly anyone was talking about court expansion." The issue, in fact, had been largely dormant since Franklin Delano Roosevelt's failed "court-packing" plan of 1937.

That's no longer true. In June 2020, Take Back the Court signed an open letter urging court expansion together with eight other left-liberal groups, including the Sunrise Movement, the Progressive Change Institute, Friends of the Earth, and 350.org. Since then, according to Belkin, the number of organizations calling for court expansion has swelled to more than fifty.

One of those organizations is Demand Justice, established in 2018 by communications specialist Brian Fallon, the group's executive director, and attorney Christopher Kang, who holds the title of chief counsel. Both are veteran political hands. Fallon served as Hillary Clinton's national press secretary during the 2016 presidential race. Kang spent nearly seven years in the Obama White House as a deputy counsel and adviser on legislative affairs.

"The first and foremost change we need to see," says Kang, "is court expansion to restore balance and legitimacy to the court. We need to fight for a court that stands for justice and equality" for all Americans.

Technically, court expansion is a relatively simple and straightforward proposition. The number of Supreme Court justices isn't set by the Constitution. It's set by Congress, which has changed the size of the court seven times, dating back to the Judiciary Act of 1789.

Over the decades, the number has varied from five to ten, when the panel was last expanded in 1863. The court was reduced to nine members in 1869, and has remained at nine ever since.

"Expansion is clearly legal, requires no Constitutional amendment, and is the fastest way to restore balance to the court," Kang maintains.

The biggest obstacle to expansion is political, and it's a big one. For the court to be enlarged, legislation would have to clear both houses of Congress, and overcome a Republican-led filibuster in the Senate. But with conservative Democratic Senators Joe Manchin of West Virginia and Kyrsten Sinema of Arizona on record as opposing changes to the filibuster rule in the upper chamber, the prospects for expansion are slim.

Still, progress is being made. Court expansion became a hot topic during the 2020 presidential race, and some leading Democrats have taken up the cause, backing legislation to accomplish the objective.

Both Belkin and Kang were on hand for a press conference in April on the steps of the Supreme Court convened to announce the introduction of the Judiciary Act of 2021 in both the House and Senate. The bill calls for four Justices to be added to the court. It currently has twenty-seven House co-sponsors, including Judiciary Committee chair Jerry Nadler of New York and leading progressives including Alexandria Ocasio-Cortez of New York, Rashida Tlaib of Michigan, and Sheila Jackson Lee of Texas.

However, neither House Speaker Nancy Pelosi nor Senate Majority Leader Chuck Schumer has come out in favor of the measure. Nor has President Biden.

Biden has instead appointed a thirty-six-member bipartisan commission, consisting largely of law professors drawn from both ends of the political spectrum, to study the issue of expansion. The commission held its first public session in May, and is expected to consider other court-reform ideas as well, such as imposing term limits on the tenure of the Justices; drafting an ethics code for the court (which is currently the only federal judicial body not bound by the Code of Conduct for U.S. Judges); and restricting the court's so-called shadow docket.

The "shadow docket" refers to the growing list of emergency orders the court has issued in recent terms without oral argument or full briefing. Such orders have been used to overturn lower-court rulings in a variety of contexts, permitting the court to quickly lift stays of execution in death penalty cases, and block state-imposed COVID-19 lockdown procedures.

Belkin and Kang have little faith in the commission, which Kang calls "unnecessary" and Belkin lambasts as a "garbage-in-and-garbage-out head fake" that will "waste time and run out the clock when action is urgently needed."

Meanwhile, as they agitate for expansion, Belkin, Kang, and others are urging Justice Stephen Breyer to resign, which would allow Biden to fulfill his campaign pledge to appoint a Black woman to the court. Breyer, who has been on the court since 1994, will turn eighty-three years old in August.

On April 9, Demand Justice hired a billboard truck to circle Capitol Hill, bearing the message "Breyer, Retire" in neon green lettering. The event, says Kang, was scheduled to coincide with the anniversary of the late Justice John Paul Stevens's retirement announcement in 2010.

In June, Demand Justice followed up the truck deployment with a full-page ad in Politico calling on Breyer to step down, and an ad with the same exhortation in The New York Times signed by eighteen Constitutional law scholars, among them Belkin and Chemerinsky.

Thus far, however, Breyer has given no hint of leaving. In a speech at Harvard in April, he also came out against court expansion, arguing that such a move would further erode public trust in the courts.

Breyer's position has disappointed many reform advocates. "If Justice Breyer wants someone with his values and views to take his place," says Chemerinsky, "he needs to sit down with the Democratic President and Democrats in the Senate."

In 2014, Chemerinsky urged Ginsburg to resign, but to no avail. "She took great offense," he recalls. "She gambled and we lost. I don't want to see Justice Breyer take that same gamble only to lose again."

Returning to the subject of expansion, Chemerinsky offers a grim warning: "Amy Coney Barrett was forty-eight when she was sworn in. If she stays on the court until she's eighty-seven, the same age when Justice Ginsburg died, she'll be a Justice until the year 2059. It is also likely that other conservatives currently on the court will be with her for another decade or more. So, unless we agree to accept a very conservative court for a long time to come, I don't see any solution but court expansion."

As unattainable as that goal may seem at the moment, the expansion movement is likely to get louder and larger in the future. "Every time the court comes out with an extreme decision, it makes the argument on expansion and rebalancing for us," says Kang.

Next term, Kang says, could prove to be the turning point for the movement, as the court is scheduled to hear cases on abortion, gun control, and possibly affirmative action—all hot-button subjects that will place the court directly in the political crosshairs heading into the 2022 elections and beyond.

If Democrats and progressives don't move the needle on court reform, they will be at least partly responsible for the failure. "The right wing in this country has had a leg up on court packing for a generation," says University of Colorado law professor Paul Campos, who has endorsed the call for Breyer's resignation and also supports expansion. "They've been laser-focused. Much of the left still subscribes to the delusion that the courts are nonpartisan and neutral."

Belkin, for his part, pledges there will be no retreat on the court-reform front. "If someone steals your wallet," he says, "you don't walk away. You take it back." The same, he reminds us, applies to democracy.

The Supreme Court is poised to radically expand the Second Amendment

This story was first published at The Progressive.

The United States is locked and loaded. This nation has more guns than people and, not surprisingly, an appalling level of gun violence.

The gun homicide rate in the United States is nearly eight times higher than the rate in Canada, and a whopping 100 times higher than in Britain. This year is shaping up to be particularly horrific. As of July 10, the United States had recorded more than 23,200 deaths from firearms, counting both suicides and unlawful killings, according to the Washington, D.C.-based Gun Violence Archive. We also have had more than 340 mass shootings (defined as an event involving four or more victims).

In any sane democracy, one might expect the highest court in the land to step in and do something to uphold sensible gun-control regulations when given the opportunity. But in fact, our Supreme Court is poised to do just the opposite in a case it will hear next fall.

The case is New York State Pistol Association v. Corlett. It was brought by two individuals and the state affiliate of the National Rifle Association to overturn a New York law that places strict limits on the issuance of concealed weapons permits.

Under New York's regulatory scheme, people seeking such permits are required to demonstrate a special need for protection—"proper cause" in the words of the statute—to qualify. The NRA contends the law violates the Second Amendment. It wants even more guns on our streets and in our communities.

After losing in the lower courts, the plaintiffs appealed to the Supreme Court, where they are considered likely to prevail. With the addition of three Trump appointees—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—conservatives now hold a solid 6-3 majority on our most powerful judicial body. No longer constrained by the need for caution and compromise, they are set to dramatically extend gun rights under the Second Amendment.

Should the New York statute be declared unconstitutional, similar measures in California, New Jersey, Delaware, Hawaii, Maryland, Massachusetts, Connecticut, and elsewhere could also fall, with dire and deadly consequences for public safety.

It's worth remembering, as we prepare for the onslaught, that the Supreme Court wasn't always a friendly venue for the NRA and the gun-rights lobby. To the contrary, prior to the court's landmark 2008 ruling in District of Columbia v. Heller, the great weight of academic scholarship as well as the court's 1939 decision in United States v. Miller had construed the Second Amendment, in keeping with the actual debates of the Constitutional Convention, as protecting gun ownership only in connection with service in long-since antiquated state militias.

Heller stood the prior consensus on its head, courtesy of the controversial 5-4 majority opinion in the case authored by the conservative fanatic Antonin Scalia. Scalia's perspective emerged victorious, but not without an intense struggle inside the court. As Justice John Paul Stevens, joined by three of his colleagues, wrote in dissent:

The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature's authority to regulate private civilian uses of firearms.

In 2010, the court issued another 5-4 decision in McDonald v. Chicago, which extended Heller, holding that the individual right to bear arms is "incorporated" by the Fourteenth Amendment's due process clause and is therefore applicable to the states and local governments. The Second Amendment, as interpreted by Scalia, thus became the law of the land. The amendment has since been elevated in rightwing circles to the status of holy writ.

Both Scalia and Stevens have since passed, but the clashing views they espoused on the Second Amendment have endured, even as the United States careens from one blood-stained catastrophe to the next, from the March 16 spa shootings in Atlanta, Georgia, which claimed eight lives; to the May 26 slayings in San Jose, California, in which ten people died; and the July 4 incident in Toledo, Ohio, in which one person was killed and eleven others were wounded.

Although Heller and McDonald were the products of extreme rightwing judicial activism, they were technically limited in scope, as they dealt with the right to keep guns in the home. Ever since those cases were decided, however, gun-rights groups have worked to bring a new test case to the Supreme Court to extend the right to bear arms beyond the home. They almost succeeded last year in another case from New York, but that appeal was ultimately dismissed.

Now, they have another vehicle in Corlett, which could well remove the last remaining judicial guardrails on the Second Amendment.

Woe to us all if that happens.

A dark preview of the right-wing Supreme Court's sweeping agenda

This story was first published in The Progressive.

Don't be fooled by the Supreme Court's rejection of former President Donald Trump's baseless challenges to the results of the 2020 election. The high tribunal is no friend of liberals and progressives.

With the addition of three Trump appointees—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—conservatives now hold a solid 6-3 majority on the nation's most powerful judicial body. No longer constrained by the need for compromise and caution, they are poised to drive U.S. law dramatically to the right.

By the time the court concludes its current term at the end of June, it will hand down decisions that could gut Obamacare, undermine the Voting Rights Act, elevate "religious liberty" interests above other Constitutional rights, and deal organized labor another major setback.

And the potential damage won't stop there. Next term, which begins in October, the court will pass judgment not only on Mississippi's draconian abortion law, but also on a new and far-reaching Second Amendment appeal from New York.

Here's a closer look at the key cases.

Health care:

All eyes are on California v. Texas, the latest assault on the Affordable Care Act (ACA).

As originally enacted, the "individual mandate" in the ACA required most people to obtain health insurance or pay a monetary penalty. In 2012, the Supreme Court upheld the mandate as a proper exercise of Congress's power to levy taxes.

In 2017, however, Congress got rid of the penalty as part of the Trump Administration's outrageously pro-corporate tax reform legislation. Although Congress did not explicitly repeal the mandate and left the rest of the ACA intact (remember John McCain's famous thumbs-down vote on the Senate floor?), a coalition of largely GOP-controlled states led by Texas filed a federal lawsuit to declare both the mandate and the entire ACA unconstitutional. District Court Judge Reed O'Connor, a George W. Bush appointee and a Federalist Society member who may just be the most reactionary jurist in the country, agreed, and issued a sweeping ruling that, if upheld, would overturn the entire ACA.

Urged by California and a group of largely Democratic-led states, the Supreme Court opted to review the case, and conducted oral arguments in November. If the court affirms Reed's decision and strikes down the entire ACA, it will commit an act of judicial barbarism. Should the court topple the mandate but preserve the rest of the act, the result would be less egregious, but would likely fuel additional challenges to other sections of the ACA.

Such a challenge is currently underway in another lawsuit pending before Judge O'Connor that aims to invalidate the act's requirement that birth control, cancer screenings and other forms of preventive care be covered by all health insurance policies.

Voting rights:

Voting rights are another area that have come under threat by SCOTUS's new conservative majority, most recently with a pair of cases from Arizona, Arizona Republican Party v. Democratic National Committee and Brnovich v. Democratic National Committee.

In its 2013 decision in Shelby County v. Holder, the Supreme Court declared the "pre-clearance" requirements of the Voting Rights Act of 1965 (VRA) unconstitutional. The preclearance process, as set forth in sections 4 and 5 of the VRA, was a bulwark against voter suppression, compelling states and local governments with a history of voting discrimination to obtain advance approval from the Department of Justice or a panel of federal judges before instituting changes in election procedures.

Preclearance placed the burden of proof and the costs of initiating litigation on the proponents of voter suppression. Shelby County flipped the burden, forcing defenders of voting rights to file and fund expensive lawsuits against suppression measures under section 2 of the VRA.

The court is now reexamining section 2 in the Arizona cases. Depending on the scope of its ruling, the court could deal another crippling blow to voting rights amid a massive upsurge of voter suppression bills introduced in states across the country in the aftermath of the 2020 elections. Oral arguments were heard in March.

"Religious liberty":

Far-right Christian views of abortion, health care, and sexuality are also getting renewed attention in SCOTUS, as in the case of Fulton v. City of Philadelphia.

Since its 2014 ruling in Burwell v. Hobby Lobby Stores, the Supreme Court's conservatives have been on a mission to uphold the "religious liberty" interests of privately held corporations that exclude birth control coverage from employee health-insurance benefits, religious schools that receive public funding for infrastructure improvements, bakers who refuse to decorate wedding cakes for gay customers, and, more recently, churches that object to COVID-19 lockdown regulations.

In Fulton, Catholic Social Services (CSS), a faith-based foster-care agency that refuses to place children with LGBTQ+ parents, is trying to extend the religious-liberty winning streak. CSS argues it should be exempt from Philadelphia's nondiscrimination policies governing foster-care and adoption placements. If the recent past is any prologue, don't bet against CSS. Oral arguments took place in November.

Labor:

Labor rights and the ability of workers to organize, too, seem ready to take a hit in Cedar Point Nursery v. Hassid.

The Supreme Court under the leadership of Chief Justice John Roberts has never been kind to organized labor. In 2018, the court held in Janus v. AFSCME that the collection of fair-share fees from nonconsenting public employees to finance collective bargaining violated the First Amendment.

In Cedar Point Nursery, the court has been asked to scuttle a 1975 California law championed by Cesar Chavez that allows organizers temporary access to farms and fields to encourage workers to join unions. A group of growers contends the law allows for acts of trespass in violation of their property rights under the Fifth Amendment. Oral arguments were heard in March.

Gun ownership:

In its landmark 2008 opinion in District of Columbia v. Heller, the Supreme Court held for the first time that the Second Amendment protects an individual right to gun ownership.

Heller dealt specifically with the right to keep guns in the home. Since then, gun rights organizations like the NRA have worked to bring another test case to the Supreme Court to extend the right to bear arms beyond the home.

They may have found their vehicle in New York State Pistol Association v. Corlett, which challenges a New York law that places strict limits on the issuance of concealed weapons permits. If the lawsuit succeeds, there will be even more lethal weapons in our communities. The case has been placed on the docket for the court's next term, which commences in October.

Reproductive rights:

Of all the fevered dreams of the American right, nothing approaches the desire to overturn Roe v. Wade and revoke the constitutional right to abortion. The case of Dobbs v. Jackson Women's Health Organization may make the right's dream a reality.

At issue is a 2018 Mississippi law that bans almost all abortions after fifteen weeks, roughly two months earlier than the standard for fetal viability set by Roe. Like Corlett, Dobbs has been placed on next term's calendar. It promises to be a blockbuster.

Predicting the precise outcome of Supreme Court cases is often difficult. It's always possible that the Justices who comprise the court's conservative majority will take a scalpel rather than an axe to their deliberations in the pivotal cases before them. But one thing is certain: The power is now in their hands.

Here's what Einstein and Freud can teach us about the psychology of hate

The United States is awash in hate. From the shootings at three Atlanta-area spas to the avalanche of voter-suppression bills sponsored by Republican lawmakers in 43 states in the aftermath of the November election, racial minorities and historically oppressed communities find themselves, once again, the objects and victims of hate.

Donald Trump may have gone to seed at Mar-a-Lago, but the hate he inspired lives on. If anything, the situation is becoming more dire. Hate in America is no longer the province of the kind of small extremist groups tracked by the Southern Poverty Law Center. The Republican Party, having been transformed by Trump, has also become an agency of bigotry and hate.

It's incumbent upon all of us to ask why this has happened. Unfortunately, there are no simple answers, and no simple remedies.

Racism and xenophobia, of course, are nothing new. They have a long and inglorious history that began with the European colonization of America and the arrival of the first slave ship in Virginia in 1619. Any attempt to understand the current uptick of hate must come to terms with this sad and awful legacy.

In general, and to their credit, academics, pundits, politicians and activists on the progressive left have done a commendable job in exploring this history, and in linking hate and bigotry to the inequalities of capitalism and the shortcomings of our legal system. The same cannot be said, however, of the left's understanding of the psychology of hate.

This is especially regrettable because there is a rich literature on the subject, ranging from the works of the Marxist psychoanalyst Wilhelm Reich to the writings of Hannah Arendt, Herbert Marcuse and Erich Fromm, and more recently, the essays of the cognitive linguist George Lakoff. You don't need an advanced degree in psychology to read, appreciate and absorb their insights into the appeal and allure of fascism and other forms of authoritarianism.

But perhaps the best introduction to the psychology of hate can be found in the 1931-1932 correspondence between Albert Einstein and Sigmund Freud. Although Einstein and Freud only met face-to-face once, in 1926 in Berlin over the Christmas holidays, they exchanged ideas in a little-known set of letters in which they addressed the nature of war, hate and violence in the uneasy quiet before the Holocaust and World War II.

I came across the letters four years ago as I tried to comprehend Trump's improbable electoral victory. What I learned helped prepare me for the dark years of Trumpism that lay ahead.

Einstein initiated the exchange with Freud at the request of the International Committee on Intellectual Cooperation, an agency of the League of Nations created in 1922 to generate cross-disciplinary dialogue between scientists, researchers, teachers, writers and artists.

The committee invited Einstein to start a dialogue with a scholar of his choosing. Einstein selected Freud, to whom he wrote in April 1931.

In his introductory letter, Einstein invited Freud to reflect on the "evils of war" in light of Freud's theory of "how inseparably the aggressive and destructive instincts are bound up in the human psyche with those of love and the lust for life." In a subsequent letter written in July 1932, he asked if there was "any way of delivering mankind from the menace of war" once and for all, and if hate could ever be erased from society.

Freud delayed his response, apparently out of concern that his ruminations would appear overly pessimistic. "All my life," he reportedly told a League of Nations official about Einstein's effort to reach out to him, "I have had to tell people truths that were difficult to swallow. Now that I am old [he died in 1939 at age 83], I certainly do not want to fool them." Nonetheless, he promised to answer Einstein's query.

Finally, in September 1932, Freud penned his reply, offering a concise distillation of his famous theory of the instincts:

"You are amazed that it is so easy to infect men with the war fever, and you surmise that man has in him an active instinct for hatred and destruction, amenable to such stimulations. I entirely agree with you. I believe in the existence of this instinct and have been recently at pains to study its manifestations. In this connection may I set out a fragment of that knowledge of the instincts… We assume that human instincts are of two kinds: those that conserve and unify, which we call 'erotic' (in the meaning Plato gives to Eros in his Symposium)… and, secondly, the instincts to destroy and kill, which we assimilate as the aggressive or destructive instincts. These are, as you perceive, the well-known opposites, Love and Hate, transformed into theoretical entities… Each of these instincts is every whit as indispensable as its opposite, and all the phenomena of life derive from their activity, whether they work in concert or in opposition."

After summarizing his theory, Freud added, "The upshot of these observations… is that there is no likelihood of our being able to suppress humanity's aggressive tendencies.… It is all too clear that the nationalistic ideas, paramount today in every country, operate in quite a contrary direction."

But all was not lost, Freud cautioned. Although war and aggression could never be completely eliminated, mitigating measures could be taken, emphasizing reason, culture, empathy and community. "From our 'mythology' of the instincts," he wrote, "we may easily deduce a formula for an indirect method of eliminating war. If the propensity for war be due to the destructive instinct, we have always its counter-agent, Eros, to our hand. All that produces ties of sentiment between man and man must serve us as war's antidote… All that brings out the significant resemblances between men calls into play this feeling of community, identification, whereon is founded, in large measure, the whole edifice of human society."

Becoming more concrete, Freud cited the "satisfaction of material needs and enforcing equality between man and man" as an indispensable component of any endeavor to temper aggression. He also endorsed the League of Nations as a means of advancing world peace.

The Einstein-Freud letters were published in 1933 in pamphlet form in German and English editions under the title "Why War?" The rise of Hitler, however, limited the press runs in each language to 2,000 copies.

Although the letters have fallen into obscurity, they offer two abiding lessons for anyone interested in combating the rise of hate in America today. The first is that it isn't enough to rid ourselves of individual tyrants like Trump. The antidote to hatred today, as it was in the 1930s and other times of crisis, is social justice at all levels of society and government through an unflinching commitment to programs and practices that enhance fairness in health care, work, education, housing, income distribution, access to legal services, and other basic aspects of life.

We have made a surprisingly good start on the road to social justice with the election of Joe Biden, but only a start. And that brings me to the second lesson of the Einstein-Freud letters—that the battle against hate is and always will be ongoing and incomplete. "Hate," as I have written before, "is a primal passion. Hate is part of our inherent makeup. We're hard-wired for it and can never entirely free ourselves from its grip."

So, even as we celebrate Trump's ouster, we have to gear up for the many battles that remain. Much as we might wish otherwise, we need to accept the grim reality that the haters among us aren't going away. They're here to stay, and we dare not ever forget that.

This article was produced by the Independent Media Institute.

Bill Blum is a retired judge and a lawyer in Los Angeles. He is a lecturer at the University of Southern California Annenberg School for Communication. He writes regularly on law and politics and is the author of three widely acclaimed legal thrillers: Prejudicial Error, The Last Appeal, and The Face of Justice.

A GOP lawyer's admission unintentionally revealed why the Democrats need the nuclear option to save democracy

One of the first lessons attorneys involved in high-stakes litigation learn is that it sometimes pays not to say the quiet part out loud, lest your client's true intentions be revealed.

Michael A. Carvin, a highly respected partner in the powerful Jones Day law firm based in Washington, D.C., may have forgotten this lesson during the oral arguments conducted by the Supreme Court on March 2 in a pair of appeals from Arizona involving Section 2 of the Voting Rights Act (VRA). In a shocking comment made toward the end of his presentation, Carvin revealed the Republican Party's entrenched and dedicated commitment to partisan advantage and voter suppression. In the process, however, Carvin may have unwittingly opened the door to abolishing the legislative filibuster and enacting H.R. 1, the landmark omnibus voting rights bill entitled the "For the People Act of 2021" that has passed the House and is now pending before the Senate.

The Arizona cases don't concern H.R. 1 or the filibuster directly. They involve a 2016 state statute that criminalizes the collection of ballots by third parties (a practice called "ballot harvesting"); and a state policy that strictly prohibits voters from casting ballots outside of their registered precincts.

Representing the Arizona Republican Party, Carvin argued that neither the statute nor the out-of-precinct prohibition runs afoul of Section 2, which bars racial discrimination in voting. Carvin contended Arizona's law and practices should be upheld because they are racially neutral and don't deny anyone the opportunity to vote.

Attorneys representing the Democratic National Committee countered that Arizona's practices disproportionately burden Native American, Latino and Latina, and Black voters, who have higher rates of residential mobility than white voters (causing them to move out of their assigned precincts more frequently than white voters), and who are more likely to rely on neighbors and friends to deliver absentee ballots to polling places because they don't own cars or have access to dependable public transportation to vote in person.

Although both the statute and the precinct rule in fact depress minority voter turnout, Carvin and the GOP are likely to prevail in the Supreme Court. Despite the high court's rejection of Donald Trump's baseless voter fraud lawsuits to overturn the results of the presidential election, the court has an abysmal record on voting rights in general.

In 2013, the court gutted Sections 4 and 5 of the VRA in the infamous case of Shelby County v. Holder in a 5-4 majority opinion written by Chief Justice John Roberts. Prior to Shelby, states and localities with histories of voting discrimination had to obtain advance approval (a process called "preclearance") from either the Justice Department or a federal court sitting in Washington, D.C., before implementing changes to voting procedures.

Post Shelby, the preclearance requirement is gone. Disadvantaged voters now have to initiate and fund lawsuits challenging unfair practices under Section 2 of the VRA. The Arizona cases threaten to gut Section 2 as well.

In the aftermath of Shelby, voter suppression tactics have proliferated across the country. They range from restrictive voter ID laws and extreme gerrymandering to the closing of polling stations and limits placed on early and absentee voting. If anything, the pace of voter suppression is accelerating in the wake of Trump's defeat. Since the election, according to the Brennan Center for Justice, Republican lawmakers in 43 states have "carried over, prefiled, or introduced 253 bills with provisions that restrict voting access."

During his argument in the Arizona cases, Carvin unintentionally confirmed the need for enacting H.R. 1 and for abolishing the filibuster in a colloquy with Justice Amy Coney Barrett.

"What's the interest of the Arizona RNC here in keeping, say, the out-of-precinct voter ballot disqualification rules on the books?" Barrett asked.

"Because it puts us at a competitive disadvantage relative to Democrats," Carvin answered. "Politics is a zero-sum game, and every extra vote they get through unlawful interpretations of Section 2 hurts us. It's the difference between winning an election 50 to 49 and losing an election 51 to 50."

As a purely legal matter, Carvin wasn't wrong to point out the partisan interests served by Arizona's out-of-precinct and vote-harvesting prohibitions. Just two years ago, the Supreme Court handed down a pair of decisions, declaring that partisan gerrymandering—the practice of dividing up a state's electoral districts so as to entrench the party in power—was a "nonjusticiable" issue outside of the jurisdiction of the federal courts.

Politically, however, Carvin's answer amounted to an admission that for real-world purposes, the challenged Arizona practices aren't neutral at all. To the contrary, they were crafted for the purpose of undermining the political influence of minority populations who tend to vote Democratic.

Although the word "filibuster" was not uttered during the oral arguments on the Arizona cases, Senate Democrats will have little choice but to take heed of Carvin's remarks and marshal the courage and unity needed to pass H.R. 1 over a Republican filibuster should the Supreme Court rule in the GOP's favor and adopt another crippling interpretation of the VRA.

Abolishing the filibuster would be an accomplishment of historic proportions. The filibuster has been part of Senate procedure since the 19th century as a means of thwarting majority rule. In more recent times, it has been used by segregationists and obstructionists to block anti-lynching and civil rights legislation as well as a proposed constitutional amendment to replace the electoral college with a popular vote for president.

In its current form, the filibuster operates pursuant to Senate Rule XXII, which stipulates that a vote of three-fifths of the upper chamber is required for "cloture" (ending debate) on any pending legislation or resolution. To complicate matters further, rule XXII also specifies that invoking cloture on a motion to change Senate rules requires a two-thirds vote.

Given these thresholds, it is extremely doubtful that rule XXII and the filibuster will be repealed entirely. What can be done, however, by a simple majority vote is what has come to be called the "nuclear option," a complex parliamentary maneuver that allows a majority of the Senate to pass legislation on a specific issue. The nuclear option was deployed by Senate Democrats in 2013 to end the filibuster and the 60-vote cloture rule on lower-court federal judicial nominations, and by Senate Republicans in 2017 to end the cloture rule and the filibuster for nominees to the Supreme Court.

The nuclear option can and must be used again to avoid a Senate filibuster on H.R.1. If ratified, H.R. 1 would amend campaign finance laws, limit partisan gerrymandering, and create new ethics rules for federal officials and Supreme Court justices, among other reforms. It also calls on Congress to restore the full VRA.

To invoke the nuclear option on H.R. 1 and voting rights, maximum public pressure must be brought to bear on the Senate's two most conservative DemocratsJoe Manchin of West Virginia and Kyrsten Sinema of Arizona—to fall in line, lest the Democrats lose control of both the House and Senate not only in 2022, but for years to come. Arizona is just the tip of the voter-suppression iceberg.

Fortunately, the filibuster is not rooted in the Constitution. It was created by the Senate, and it can be ended or modified by the Senate. To quote a recent column penned by Salon writer Amanda Marcotte, Democrats won't just be "failing themselves if they don't end the filibuster"; they will be "failing democracy itself."

Bill Blum is a retired judge and a lawyer in Los Angeles. He is a lecturer at the University of Southern California Annenberg School for Communication. He writes regularly on law and politics and is the author of three widely acclaimed legal thrillers: Prejudicial Error, The Last Appeal, and The Face of Justice.

This article was produced by the Independent Media Institute.

Donald Trump wanted two favors from the Supreme Court he helped build

Like a mob boss looking for payback, Donald Trump wanted the Supreme Court to do him two favors heading into the November election: keep him in power and keep him out of jail. To its everlasting credit, the court quickly declined to deliver on the first. Even though Trump had nominated three arch-conservatives to the bench—Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett—the court rejected his baseless challenges to the results of the election.

It took the court far too long to screw up the courage to decline the second favor, but in a one-sentence order issued on February 22, the court dismissed an emergency petition Trump's lawyers had filed last October to stop Manhattan District Attorney Cyrus Vance Jr. from enforcing a critical grand jury subpoena issued to the former president's accounting firm—Mazars USA, LLP—as part of a wide-ranging criminal investigation involving Trump's business practices.

Pending the court's ruling on the petition, Vance had agreed to pause enforcement of the subpoena. And in the meantime, as the court dithered, New York's five-year statute of limitations continued to tick away, threatening to derail the entire probe.

The investigation can now move forward, full speed.

Of all the potential avenues for indicting Trump now that he is out of office and has lost the immunity from prosecution that comes with the presidency, Vance's probe, which began in 2018, offers the most immediate promise. Although New York grand jury proceedings are secret, it has been widely reported that Vance is investigating Trump not only for the hush money paid to pornographic film star Stephanie Clifford, aka "Stormy Daniels," and onetime Playboy Magazine model Karen McDougal, but also to determine if other aspects of Trump's private financial dealings have violated state fraud and income tax laws.

The Mazars subpoena is a key component of Vance's inquiry. It demands multiple years of Trump's personal and corporate federal and state tax returns and other financial documentation, dating back to 2011.

As some commentators have noted, information from Mazars could help prove that the Trump Organization used deceptive accounting techniques to inflate the value of assets when applying for bank loans and insurance while understating values to reduce tax bills. Documents from Mazars could also help establish that Trump or members of his family acted with the knowledge and intent needed to prove the commission of financial crimes.

Usually, the Supreme Court rules on emergency petitions expeditiously, often within a matter of weeks, or even days. So, what was behind the inaction in this case? Was there a legitimate reason for the inordinate delay, or were political considerations in play?

The court itself isn't saying. Unlike elected politicians, the justices don't issue press releases or regularly speak to the media. In the absence of an official explanation, the reason for the delay appears to lie in the ideological orientation of the court, which has shifted sharply to the right since the death of Justice Ruth Bader Ginsburg last September.

The court's conservatives now outnumber its liberals, 6-3. They determine the substantive outcome of most cases as well as the timing of decisions. But despite the backbone they displayed in rebuffing Trump's 2020 election complaints, the conservatives may not have been willing to abandon Trump to deal with Vance and his prosecutorial team while he was still president.

Whatever the reason, there was no good excuse for the more than four-month delay on the Mazars subpoena, especially because the court was already familiar with the subpoena and the facts and issues it raised. Indeed, the subpoena was the subject of the court's historic 7-2 decision last July, which recognized the authority of a state grand jury to demand documents from a sitting president.

Writing for the majority in last year's case, Chief Justice John Roberts reached deep into the history of U.S. constitutional law, as I have noted before, citing the legendary Chief Justice John Marshall's approval of subpoenas issued to President Thomas Jefferson in the 1807 treason trial of Aaron Burr. Roberts' opinion was also layered with repeated references to the cases of United States v. Nixon and Clinton v. Jones.

In the process, Roberts rejected both the claim raised by Trump's private attorneys that sitting presidents enjoy "absolute immunity" from state criminal investigations, as well as an alternative contention advanced by the Trump Justice Department that state prosecutors must demonstrate a "heightened" standard of need before gaining access to the president's records.

Roberts and the majority, however, stopped short of ordering compliance with the subpoena. Instead, they remanded the case to the lower federal courts to permit Trump's attorneys to argue the subpoena was overly broad in scope and issued in bad faith. Afterward, in short order, both the federal district court judge assigned to the litigation in Manhattan as well as the 2nd Circuit Court of Appeals upheld the subpoena, setting the stage for the Supreme Court to resolve the matter once and for all.

Lacking any sound basis to invalidate the subpoena, Trump's attorneys were obviously counting on continued delays to keep their client out of jail. But despite the rejection of their emergency petition, they may not be done trying yet.

According to CNN, the disgraced ex-president's lawyers are preparing to file a new petition with the Supreme Court, requesting a full hearing with oral arguments and a new briefing schedule to review the 2nd Circuit's ruling. If granted, such a petition could impose additional delays and restrictions on Vance's investigation.

Trump, for his part, has responded to the court's order in typical fashion, releasing a statement lambasting the order as a continuation of the "witch hunt" against him. "The Supreme Court never should have let this 'fishing expedition' happen, but they did," the statement asserted. "This is something which has never happened to a President before, it is all Democrat-inspired in a totally Democrat location, New York City and State, completely controlled and dominated by a heavily reported enemy of mine, Governor Andrew Cuomo."

To restore the public's faith in judicial independence, the court should reject any further efforts to undermine, limit or suspend the Vance investigation. In the aftermath of Trump's shameful acquittal in his second Senate impeachment trial, the court should stand aside and force Trump to face accountability.

Now a private citizen, Donald Trump deserves no more deference or protection from the judiciary than any other criminal suspect. It's high time to bring him to justice. Nothing less than the rule of law is at stake.

Bill Blum is a retired judge and a lawyer in Los Angeles. He is a lecturer at the University of Southern California Annenberg School for Communication. He writes regularly on law and politics and is the author of three widely acclaimed legal thrillers: Prejudicial Error, The Last Appeal, and The Face of Justice.

This article was produced by the Independent Media Institute.

Here's how Democrats can turn Trump's inevitable impeachment acquittal into a victory

Anytime your lawyers walk out on the eve of the most important trial of your life, you should be in big trouble. Except, of course, if you're Donald John Trump and you're facing your second impeachment trial in the U.S. Senate, where the majority of Republicans are either spineless sycophants or outright authoritarians who will never vote to convict you, no matter how compelling the evidence.

That's exactly where Trump finds himself as his latest trial is slated to begin on February 9. Five members of Trump's impeachment legal team resigned a little more than a week before the trial, ostensibly over disputes about trial strategy. According to several news outlets, Trump pressured the lawyers to center his defense on the widely debunked claims of election fraud he persists in peddling. The attorneys wanted to concentrate on constitutional issues.

The legal exodus left Trump scrambling to hire replacements and even boasting to aides that he could represent himself. He has since hired another slate of lawyers headed by two attorneys who boast strong right-wing credentials and, like Trump, have a flair for publicity.

One of the newcomers, David Schoen of Montgomery, Alabama, previously represented Trump associate Roger Stone, and met with Jeffrey Epstein in prison nine days before the accused sex trafficker's death. Epstein reportedly asked Schoen to represent him, and Schoen has since declared he believes Epstein's death was not a suicide.

The other new lead counsel is Bruce Castor of Pennsylvania, who once served as the district attorney of Montgomery County, a suburb of Philadelphia. In 2005, Castor made headlines when he declined to bring sexual assault charges against comedian Bill Cosby.

Ordinarily, a defendant buffeted by such a last-minute shuffle of attorneys might be expected to "lose big time," to invoke one of Trump's favorite catchphrases. But not in this case.

Despite the internal turmoil, Trump's acquittal appears all but certain. On January 26, 45 Senate Republicans voted in favor of a procedural motion that would have dismissed the impeachment case against Trump on the legally dubious theory that the Constitution restricts impeachment to current officeholders. Although 55 senators, including five Republicans, voted to allow the trial to proceed, convicting Trump will require a two-thirds vote of the upper chamber, and that, at least for now, seems unattainable.

Sensing defeat, some Democrats have already started to waver. Virginia Senator Tim Kaine has announced plans to file a censure motion against Trump as an alternative to impeachment. Other Senate Democrats want to go ahead with the trial, but want to keep it as short as one week.

The hand-wringing, while predictable, is unwarranted and shortsighted. Above all, it fails to meet the vital challenge of holding Trump accountable for his plot to subvert democracy.

The article of impeachment lodged against Trump could not be more ominous. It charges him with "incitement of insurrection" for the infamous speech he delivered outside the White House on January 6, exhorting an angry and armed throng of white supremacists, neo-Nazis, QAnon fanatics, and MAGA zealots to march to the U.S. Capitol building and "fight like hell" to prevent the certification of Joe Biden's Electoral College victory, and in effect, overthrow the government.

In addition, the article maintains that: "In the months preceding the Joint Session [of Congress on January 6], President Trump repeatedly issued false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the American people or certified by State or Federal officials."

Leaving no doubt about Trump's intentions, the article also alleges:

"President Trump's conduct on January 6, 2021, followed his prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election. Those prior efforts included a phone call on January 2, 2021, during which President Trump urged the secretary of state of Georgia, Brad Raffensperger, to 'find' enough votes to overturn the Georgia Presidential election results and threatened Secretary Raffensperger if he failed to do so."

Having come this far, Democrats have no choice but to mount the strongest possible evidentiary showing against Trump. Whether the trial takes a week or longer, and whether or not it features live witnesses, the House impeachment managers who will try the case against Trump must demonstrate, in the words of Rep. Liz Cheney, that "The President of the United States summoned this mob, assembled the mob, and lit the flame of this attack. Everything that followed was his doing."

On February 2, the House managers filed an 80-page pretrial brief, promising to prove Trump's responsibility for the Capitol riot. Trump's new legal team filed a skimpy 14-page response, denying Trump caused the riot, contending the Senate cannot convict a former president, and arguing weakly that anything Trump said on January 6 or about election fraud generally was protected by the First Amendment. (As I have explained elsewhere, the First Amendment does not in fact protect speech aimed at inciting insurrection.)

As a technical matter, once the trial commences, establishing Trump's culpability should be easy. Hours of publicly available videos can be assembled and collated to document Trump's plan to retain power at all costs.

Starting in December, Trump began to urge supporters to come to Washington on January 6, tweeting on December 19 that there would be a "[b]ig protest," and inviting them to "Be there, will be wild!" Continuing the theme of impending insurrection in a tweet sent out the day after Christmas, he wrote, "If a Democrat Presidential Candidate had an Election Rigged & Stolen… the Democrat Senators would consider it an act of war, and fight to the death." Referring specifically to January 6 at a rally in Georgia on January 4 to support Republican Senate candidates Kelly Loeffler and David Perdue, he pledged, "We're going to take what they did to us on November 3. We're going to take it back."

The House managers also have access to video recordings that show, in real time, that many in the crowd on January 6 thought Trump was urging them to occupy the Capitol by force, and that they were following his orders. And then, of course, there is ample video footage of the actual destruction wreaked by the mob immediately following Trump's speech.

Democrats who need a shot of courage to move forward against the odds must take a broader historical view of the upcoming impeachment trial. It is not just the Senate that will hear the evidence against Trump, but the American people as well. And in a very real sense, it will not just be Trump on trial, but the racist and fascist insurgency he has unleashed. That insurgency will survive Trump and remain a clear and present danger to the nation for years to come. It must be vanquished and crushed by all available legal means.

Instead of anticipating just another legal loss on impeachment, Democrats should take a cue from the civil rights movement of the 1950s and '60s, which suffered many legal setbacks along the way to transformational victories.

In particular, Democrats would do well to recall the case of Emmett Till, the 14-year-old black teenager who was kidnapped, mutilated and murdered in Mississippi in 1955 for allegedly flirting with a white woman. Two white men were indicted by a Tallahatchie County grand jury for killing Till. But despite the overwhelming evidence against them, the defendants were acquitted by an all-white, all-male jury that deliberated for a mere 67 minutes.

The verdict, though cruel and outrageous, surprised no one. The defendants were never made to pay for their crimes—and in fact, later admitted their guilt in an interview with Look magazine—but their acquittal became a catalyst for subsequent advances in civil rights.

So, too, can the Democrats link impeachment to the wider struggle against fascism, and in the process turn defeat, if it comes, into a larger long-term triumph. But only if they have the necessary vision and, most essentially, the necessary courage.

Bill Blum is a retired judge and a lawyer in Los Angeles. He is a lecturer at the University of Southern California Annenberg School for Communication. He writes regularly on law and politics and is the author of three widely acclaimed legal thrillers: Prejudicial Error, The Last Appeal, and The Face of Justice.

Here's the key flaw in a First Amendment defense for Trump's incitement

Donald Trump is the only American president to be impeached twice. This time, he stands accused in a single article of impeachment of "incitement of insurrection" for delivering an incendiary speech on January 6 to an angry mob of supporters, sparking them to storm the U.S. Capitol building to prevent the certification of Joe Biden's Electoral College victory.

Trump will now be tried in the Senate. There, he will be given the opportunity to defend his shameless rhetoric and behavior. Among other claims, he will likely mount a defense under the First Amendment and argue that his speech was constitutionally protected by the Supreme Court's landmark 1969 decision in Brandenburg v. Ohio.

The Senate can be expected to consider Trump's position carefully and fully. But at the end of the proceeding, no matter who leads his legal team, any impeachment defense based on Brandenburg and the First Amendment will be—to put it in the vernacular—complete and utter garbage.

Clarence Brandenburg was a small-time bigot who owned a television repair shop in the Village of Arlington Heights, a tiny hamlet roughly 11 miles north of Cincinnati, Ohio. He was also a Ku Klux Klan leader.

On June 28, 1964, at Brandenburg's invitation, a reporter and a cameraperson from a Cincinnati TV station attended a Klan rally held on a nearby farm. Footage from the rally showed 12 hooded figures gathered around a burning cross, shouting various epithets, including: "This is what we are going to do to the niggers," "Send the Jews back to Israel," "Save America," "Bury the niggers," "Give us our state [sic] rights," and "Freedom for the whites."

Brandenburg was also filmed, saying:

"The Klan has more members in the State of Ohio than does any other organization. We're not a revengent [sic] organization, but if our President, our Congress, our Supreme Court, continues [sic] to suppress the white, Caucasian race, it's possible that there might have to be some revengeance [sic] taken."
"We are marching on Congress July the Fourth, four hundred thousand strong. From there, we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank you."

Brandenburg was subsequently arrested and convicted of violating Ohio's criminal syndicalism law, which made it a crime to advocate violence as a means of achieving political reform. He was fined and sentenced to prison.

Five years later, the Supreme Court reversed his conviction. In its decision, the court articulated a new test for determining the constitutionality of subversive speech, holding that the First Amendment protects advocating the use of force or lawbreaking "except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

As should be obvious to anyone this side of Rudy Giuliani, Brandenburg's prosecution was entirely different from the incitement case against Trump, both on the facts and the law.

Unlike Trump, Brandenburg never threatened imminent action of any kind. His diatribes were racist and repugnant, but also the stuff of addlebrained, semi-grammatical fantasy. Brandenburg had no minions at his command, let alone the 400,000 he had conjured in his speech. He posed no immediate danger to anyone.

Trump, by contrast, has millions of dedicated supporters at his disposal. In the first presidential debate in September, he told the Proud Boys to "stand back, and stand by." Starting in December, he began to urge his supporters to come to Washington on January 6, tweeting on December 19 that there would be a "[b]ig protest," and inviting them to "Be there, will be wild!" Referring to the protest again at a rally in Georgia on January 4, he pledged, "We're going to take what they did to us on November 3. We're going to take it back."

The MAGA zealots, white nationalists, and neofascists who showed up to hear Trump on January 6 were ready, willing and able to do his bidding. They were treated to a rambling speech filled with violent imagery, as the sitting president of the United States urged his supporters to march down Pennsylvania Avenue to the Capitol and to "fight like hell" to "stop the steal" of the election. He even falsely promised to march alongside them, proclaiming, "I'll be there with you."

While Trump never mentioned specific acts of violence and only once, in a single brief mention, did he tell his supporters "to peacefully… make your voices heard," the speech as a whole was a call to imminent lawless action, as many in the mob construed it. Both the Washington Post and the New York Times have reported that some of the Capitol marauders actually thought they were acting on direct orders from Trump.

In inciting the mob, Trump arguably violated two federal statutes that prohibit insurrection and rebellion against the United States as well as seditious conspiracy.

Whether or not Trump is ever criminally prosecuted, he without question committed an impeachable offense. The history of American impeachment clearly establishes that such offenses may encompass both criminal and noncriminal conduct. According to the House of Representatives' procedural practice manual, "Less than one-third of all the articles [of impeachment] the House has adopted have explicitly charged the violation of a criminal statute or used the word 'criminal' or 'crime' to describe the conduct alleged."

In Federalist Paper No. 65, Alexander Hamilton described impeachable offenses as "those… which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself." [emphasis in original]

The First Amendment cannot be invoked to save Trump from an abuse of power so egregious and deadly. To do so would be to turn the amendment on its head. As Joshua Matz and Norm Eisen argued in a January 13 op-ed in Politico, "the Free Speech Clause exists to protect private citizens from the government, not to protect government officials from accountability for their own abusive statements."

It's now up to the Senate to sit in judgment on Trump's defilement of the Constitution. To borrow a line from the Broadway musical Hamilton, each and every senator should know, "History has its eyes on you."

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