Bill Blum

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."

Here's how to prevent a 2024 Trump campaign

Now that Donald Trump has gone full Lukashenko in his now-violent plot to retain power, we have to ask whether this time, finally, the nation will muster the collective will to hold him responsible for his malfeasance. The future of American democracy may depend on how the question is answered.

This article was produced by the Independent Media Institute.

Even before Trump supporters stormed the U.S. Capitol on January 6 to disrupt the joint session of Congress that had convened to certify Joe Biden's Electoral College victory, Trump had committed a variety of fresh federal and state criminal offenses in his hour-long telephone conversation with Georgia Secretary of State Brad Raffensperger on January 2. In the call, the sitting president of the United States pressured Raffensperger and Ryan Germany, the secretary's general counsel, to "find" him enough votes to overturn Biden's win in the state.

As two recounts and a signature audit have confirmed, Trump lost Georgia by precisely 11,779 ballots. Nonetheless, Trump made it clear toward the latter part of his talk with Raffensperger that he wasn't just asking for an outlandish favor. Rather, he was making a demand, and serving notice in his official capacity that both Raffensperger and Ryan could face federal prosecution if they refused to comply.

Don't accept this interpretation of the conversation from me. Take it from Trump himself. Trump has acknowledged on his Twitter account that he made the call, and the Washington Post, which broke the story, has published a complete transcript of the conversation, in which Trump was joined by White House Chief of Staff Mark Meadows and several lawyers, including prominent conservative attorney Cleta Mitchell.

The Washington Post has also released the complete audio recording of the conversation and you can listen to Trump's own words:

"That's a criminal offense," Trump can be heard saying, accusing Raffensperger of reporting false election results. "And you can't let that happen. That's a big risk to you and to Ryan, your lawyer.… And you can't let it happen, and you are letting it happen. You know, I mean, I'm notifying you that you're letting it happen. So look. All I want to do is this. I just want to find 11,780 votes, which is one more than we have, because we won the state."

Realizing the need for action, two Democratic members of the House of Representatives—Ted Lieu of California and Kathleen Rice of New York—have written FBI Director Christopher Wray, asking for a criminal investigation into Trump's threats. Citing two federal statutes and a Georgia law, Lieu and Rice wrote that they believe Trump has "engaged in solicitation of, or conspiracy to commit, a number of [federal and state] election crimes."

Lieu and Rice might also have added treason and sedition to the list, but they drafted their letter before Trump supporters rioted at the Capitol.

Unfortunately, there is still little chance that Trump actually will be prosecuted for the phone call. Federally, as Biden's inauguration approaches, Trump can be preemptively pardoned for any crimes, either by resigning and permitting Mike Pence, as his successor for the few days remaining in the lame-duck period, to do the honors or by issuing a pardon to himself. And as for Georgia, no one should expect an indictment as long as the levers of state government remain in Republican hands.

There is another way to hold Trump accountable, however—by means of a second impeachment.

The goal of a second impeachment would not be to remove Trump from the White House, unless, of course, he somehow manages to pull off a coup d'état before January 20. The goal would be to disqualify Trump from ever holding federal office again.

Under Article I, Section 3 of the Constitution, judgment in cases of impeachment extends to both sanctions—removal from current office and disqualification from holding future office. Since Trump reportedly has floated the idea of running for president again in 2024, a second impeachment would be designed to deal a death blow to another Trump campaign with hearings in the House and a trial in the Senate focused on the "high crimes and misdemeanors"—the phrase used in Article II of the Constitution to define impeachable offenses, along with treason and bribery—that Trump committed in his first term in office. Impeachable offenses, moreover, are not subject to the pardon power.

A second set of impeachment articles returned against Trump could allege a bundle of serious crimes in addition to the phone call to Raffensperger, ranging from obstruction of justice in connection with former Special Counsel Robert Mueller's probe into Russian interference in the 2016 election to conspiracy to defraud the United States by subverting the entire 2020 election.

Nor would the fact that Trump was no longer president legally bar a second impeachment. In 1876, the Senate conducted an impeachment trial of Secretary of War William Belknap even though he had resigned before the House voted to impeach him for financial corruption. Although the Senate failed to muster the two-thirds majority needed to convict Belknap, a majority of senators found him guilty. His impeachment trial lasted nearly four months and featured more than 40 witnesses.

While Richard Nixon escaped impeachment via resignation, the current House and Senate would not be bound by Nixon's example. Both chambers would be free instead to follow the Belknap precedent in the case of impeaching a former president, as several leading constitutional scholars indicated in interviews with the Washington Post in 2019.

If he were faced with a second impeachment, Trump wouldn't get off as easily as he did the first time around. He would still have to be convicted of an impeachable offense by a two-thirds Senate majority, but as Amherst College professor Austin Surat argued in a USA Today column published January 4, only a simple majority vote would be needed for disqualification. The National Review's Kevin D. Williamson has also called for a second impeachment.

The bottom line is that Donald John Trump, our 45th commander in chief, must be brought to justice by any legitimate means. With the House in Democratic hands and with enough Republicans in the Senate fed up with Trump's sedition, a second impeachment is not only possible—it is a necessity.

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.

Trump's now-violent plot to retain power demands that he be impeached again

Now that Donald Trump has gone full Lukashenko in his now-violent plot to retain power, we have to ask whether this time, finally, the nation will muster the collective will to hold him responsible for his malfeasance. The future of American democracy may depend on how the question is answered.

Even before Trump supporters stormed the U.S. Capitol on January 6 to disrupt the joint session of Congress that had convened to certify Joe Biden's Electoral College victory, Trump had committed a variety of fresh federal and state criminal offenses in his hour-long telephone conversation with Georgia Secretary of State Brad Raffensperger on January 2. In the call, the sitting president of the United States pressured Raffensperger and Ryan Germany, the secretary's general counsel, to "find" him enough votes to overturn Biden's win in the state.

As two recounts and a signature audit have confirmed, Trump lost Georgia by precisely 11,779 ballots. Nonetheless, Trump made it clear toward the latter part of his talk with Raffensperger that he wasn't just asking for an outlandish favor. Rather, he was making a demand, and serving notice in his official capacity that both Raffensperger and Ryan could face federal prosecution if they refused to comply.

Don't accept this interpretation of the conversation from me. Take it from Trump himself. Trump has acknowledged on his Twitter account that he made the call, and the Washington Post, which broke the story, has published a complete transcript of the conversation, in which Trump was joined by White House Chief of Staff Mark Meadows and several lawyers, including prominent conservative attorney Cleta Mitchell.

The Washington Post has also released the complete audio recording of the conversation and you can listen to Trump's own words:

"That's a criminal offense," Trump can be heard saying, accusing Raffensperger of reporting false election results. "And you can't let that happen. That's a big risk to you and to Ryan, your lawyer.… And you can't let it happen, and you are letting it happen. You know, I mean, I'm notifying you that you're letting it happen. So look. All I want to do is this. I just want to find 11,780 votes, which is one more than we have, because we won the state."

Realizing the need for action, two Democratic members of the House of Representatives—Ted Lieu of California and Kathleen Rice of New York—have written FBI Director Christopher Wray, asking for a criminal investigation into Trump's threats. Citing two federal statutes and a Georgia law, Lieu and Rice wrote that they believe Trump has "engaged in solicitation of, or conspiracy to commit, a number of [federal and state] election crimes."

Lieu and Rice might also have added treason and sedition to the list, but they drafted their letter before Trump supporters rioted at the Capitol.

Unfortunately, there is still little chance that Trump actually will be prosecuted for the phone call. Federally, as Biden's inauguration approaches, Trump can be preemptively pardoned for any crimes, either by resigning and permitting Mike Pence, as his successor for the few days remaining in the lame-duck period, to do the honors or by issuing a pardon to himself. And as for Georgia, no one should expect an indictment as long as the levers of state government remain in Republican hands.

There is another way to hold Trump accountable, however—by means of a second impeachment.

The goal of a second impeachment would not be to remove Trump from the White House, unless, of course, he somehow manages to pull off a coup d'état before January 20. The goal would be to disqualify Trump from ever holding federal office again.

Under Article I, Section 3 of the Constitution, judgment in cases of impeachment extends to both sanctions—removal from current office and disqualification from holding future office. Since Trump reportedly has floated the idea of running for president again in 2024, a second impeachment would be designed to deal a death blow to another Trump campaign with hearings in the House and a trial in the Senate focused on the "high crimes and misdemeanors"—the phrase used in Article II of the Constitution to define impeachable offenses, along with treason and bribery—that Trump committed in his first term in office. Impeachable offenses, moreover, are not subject to the pardon power.

A second set of impeachment articles returned against Trump could allege a bundle of serious crimes in addition to the phone call to Raffensperger, ranging from obstruction of justice in connection with former Special Counsel Robert Mueller's probe into Russian interference in the 2016 election to conspiracy to defraud the United States by subverting the entire 2020 election.

Nor would the fact that Trump was no longer president legally bar a second impeachment. In 1876, the Senate conducted an impeachment trial of Secretary of War William Belknap even though he had resigned before the House voted to impeach him for financial corruption. Although the Senate failed to muster the two-thirds majority needed to convict Belknap, a majority of senators found him guilty. His impeachment trial lasted nearly four months and featured more than 40 witnesses.

While Richard Nixon escaped impeachment via resignation, the current House and Senate would not be bound by Nixon's example. Both chambers would be free instead to follow the Belknap precedent in the case of impeaching a former president, as several leading constitutional scholars indicated in interviews with the Washington Post in 2019.

If he were faced with a second impeachment, Trump wouldn't get off as easily as he did the first time around. He would still have to be convicted of an impeachable offense by a two-thirds Senate majority, but as Amherst College professor Austin Surat argued in a USA Today column published January 4, only a simple majority vote would be needed for disqualification. A National Review writer has also called for a second impeachment.

The bottom line is that Donald John Trump, our 45th commander in chief, must be brought to justice by any legitimate means. With the House in Democratic hands and with enough Republicans in the Senate fed up with Trump's sedition, a second impeachment is not only possible—it is a necessity.

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 how the rest of Trump's desperate effort to stay in power will play out

Donald Trump isn't about to concede the presidential election to Joe Biden. Not now, and seemingly, not ever.

Anyone who has followed Trump closely knows two things about the man that make it relatively easy to anticipate his next move. The first is that, ideologically, Trump is a fascist who has no regard for democracy. The second is that, psychologically, he is a malignant narcissist who suffers from a toxic stew of narcissism, paranoia, antisocial personality disorder and sadism. As a result, it is virtually impossible for him to acknowledge, much less accept, failure.

Trump also faces the prospect of being prosecuted for a variety of state and federal felonies upon leaving office. And while he can avoid federal jeopardy with a pardon, to do so he would either have to resign and permit Mike Pence, as his successor for the duration of the lame-duck period, to do the honors or undertake the legally dubious step of issuing a pardon to himself. Even then, he would remain exposed to the ongoing probe conducted by Manhattan District Attorney Cyrus Vance into allegations of tax, business and insurance fraud under New York law.

How, then, does a fascist and a malignant narcissist who faces jail stave off defeat? Having lost both the popular vote and, more importantly, the tally in the Electoral College, and after being rebuked by numerous state and federal courts, including the Supreme Court, Trump is moving to his next option—staging what would amount to a coup d'état, invoking the complex provisions of the 12th Amendment, when Congress meets in a joint session on January 6 to confirm the winner of the presidential race.

That there will be an attempted coup is no longer a matter of speculation. In an appearance on "Fox & Friends" on December 14, Stephen Miller, perhaps the most deranged and malevolent of Trump's senior advisers, openly declared the administration's plan to overturn the election results in the upcoming joint session.

A gambit under the 12th Amendment is a long shot, to be sure, but so was Trump's initial presidential bid back when he descended the escalator at Trump Tower in June 2015 to announce his first campaign and stigmatize undocumented Mexican migrants as "rapists" and drug traffickers. It behooves us, then, to take Trump and Miller seriously.

Ratified in 1804 in the aftermath of the hotly disputed election of 1800 (which ultimately seated Thomas Jefferson as the nation's third president), the 12th Amendment modified the procedures that govern the Electoral College. And while the 12th Amendment itself was modified by the 20th Amendment (which moved up the presidential inauguration from March to January), its basic provisions remain intact.

Of particular relevance to Trump's machinations, the 12th Amendment stipulates that after the electors of the various states (there are 538 of them today) cast and certify their votes for president and vice president, their ballots are transmitted to the president of the Senate. Under the Constitution, the president of the Senate is the vice president, currently Pence.

The president of the Senate's role thereafter is ministerial and mandatory. Under the terms of the amendment, the president of the Senate "shall," in the joint session, "open all the certificates and the votes shall then be counted; The person having the greatest number of votes for President, shall be the President," provided—and this is the key to appreciating the impending coup—that such person receives a majority of the electoral votes.

But what happens if the Electoral College vote count is disputed? To understand what occurs then, we have to toggle back and forth between the 12th Amendment and a statute passed by Congress more than 130 years ago—the Electoral Count Act (ECA) of 1887. Under the ECA, if a single member of both the House and Senate signs and submits a challenge to any state's electoral votes, the joint session must immediately go into recess to allow each chamber to meet separately and debate the merits of the objections. To be sustained, objections require the support of a majority of the members of each chamber. Absent a majority, the objections fail.

It's all but certain that when the joint session convenes on January 6, objections to the electoral votes cast in the swing states of Arizona, Nevada, Georgia, Wisconsin, Michigan, and Pennsylvania indeed will be lodged. Republican Rep. Mo Brooks of Alabama, one of the zaniest of the GOP's bloated stable of right-wing fanatics, has announced that he will file an objection. Alabama Republican Senator-elect Tommy Tuberville, the thick-headed former college football coach, has suggested he will join Brooks.

A drama not seen in this country since the election of 1876, when alternate slates of electors were sent to the Senate on behalf of Democrat Samuel Tilden and Republican Rutherford B. Hayes (the eventual winner), will then ensue.

Reminiscent of 1876, alternate pro-Trump slates of Republican electors have met in several swing states, and plan to send their votes to the Senate in time for the joint session to back up the objections that will be raised by Brooks and Tuberville.

Both the 12th Amendment and the ECA address a doomsday scenario in which no candidate wins a majority in the Electoral College, whether because of the presence of alternate electors or for other reasons. In that event, the task of naming the next president is transferred to the House. The House then conducts a "contingent election," but with each state delegation getting one vote rather than each representative casting individual votes. Since Republicans will hold 27 House delegations in the next Congress, Trump would emerge victorious.

Fortunately, a contingent election in the House is highly unlikely. Because the Democrats control the House, and several Republican senators, including Senate Majority Leader Mitch McConnell, have recognized Biden as president-elect, the Brooks and Tuberville objections, even if backed by alternate electors, are destined to fail, as their objections will be subject to an ordinary majority vote in each chamber. In addition, to date, no votes cast by rogue pro-Trump electors have been certified by state governors or officially by any state legislatures, as required by the ECA.

But even that won't necessarily end Trump's attempted coup. According to press reports, Trump is considering advice offered by Michael Flynn to declare martial law to force a new election in the swing states that voted for Trump. Flynn, the disgraced retired Army lieutenant general and former national security adviser whom Trump pardoned in November for lying to the FBI, has been promoting the idea of martial law on Twitter and on right-wing media.

In any other era, Flynn would be dismissed as a caricature straight out of "Dr. Strangelove." The trouble is, we're living in the increasingly treacherous waning days of the Trump era, dominated by a fascist and a malignant narcissist desperate to remain in power.

Trump's coup will fail, but not before leaving a lasting stain on American democracy.

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.

Why Bill Barr will go down as the second-biggest loser of the Trump era

Of all the bombastic statements ever uttered by Attorney General William "Bill" Barr, a remark made toward the end of a lengthy interview with CBS News in May will be remembered above the rest. Asked how "history" will look upon his controversial motion to dismiss the criminal charges that Special Counsel Robert Mueller brought against Michael Flynn for making false statements to the FBI, Barr raised his eyebrows, chortled loudly, and flashed a sly smile.

Then he answered:

"Well, history is written by the winner. So it largely depends on who's writing the history. But I think a fair history would say that it [the move to drop the Flynn case] was a good decision because it upheld the rule of law."

Barr's attempt to dismiss Flynn's prosecution went wildly awry. The dismissal motion was intensely litigated, and Flynn was still awaiting sentencing when, on November 25, President Trump issued the retired Army lieutenant general and former national security adviser a "full and unconditional pardon" for "any and all possible offenses" arising from the Mueller investigation. No matter that Flynn had twice pleaded guilty to the false statement charge. So much for the rule of law.

Barr's Justice Department responded to the pardon with another dismissal motion on Flynn's behalf. The motion was granted on December 8.

Flynn, for his part, responded to the pardon on social media with reckless abandon, tweeting an ad from the Washington Times that called for Trump to suspend the Constitution and "invoke limited martial law" to permit the military to conduct an election do-over.

The history of Barr's service as Trump's attorney general will no doubt be the subject of much future academic and political commentary. And while future historians may debate the details of his record, Barr will not be among the "winners" who will get to pass judgment on his performance as the nation's top law enforcement officer. To the contrary, Barr will go down as the second-biggest loser of the Trump era, subordinate only to Trump himself.

It may be tempting to look at Barr as something of a tragic figure, as someone who lost his moral compass and sacrificed his good name in fealty to a corrupt leader. Tempting, perhaps, but wrong.

Yes, it's true that a few Democrats, along with some influential mainstream legal commentators, supported Barr's nomination to become attorney general before his appointment in 2019. They believed he was an "institutionalist," and they hoped that he would be an improvement over his immediate predecessors, Jeff Sessions and Matthew Whitaker, who had disgraced the Department of Justice. They were fooled.

The real tragedy is that anyone left of center ever viewed Barr as a fair-minded institutionalist. The truth is that Barr has always been an aggressively partisan right-wing ideologue, bent on entrenching the most retrograde of GOP policies.

A longtime and fervent proponent of the "unitary executive" theory, which posits that all executive branch power is vested in the president and in its most extreme form amounts to a blueprint for presidential supremacy, Barr served as attorney general from 1991 to 1993 in the administration of George H.W. Bush. Barr is widely credited with using his position as attorney general at the time to secure pardons for six criminal defendants accused of breaking federal law in connection with the Iran-Contra scandal of the 1980s.

Two of the Iran-Contra pardons—granted to former Defense Secretary Caspar Weinberger and former CIA officer Duane Clarridge—were issued "preemptively," prior to conviction, in a fashion reminiscent of Gerald Ford's pardon of Richard Nixon and those Trump is reportedly contemplating for himself and members of his family and inner circle. For his work procuring the Iran-Contra pardons, Barr earned himself the nickname of the "Coverup-General."

After Trump nominated Barr to serve a second stint as attorney general, the ACLU issued a scathing report, asserting:

"During his time in government as well as in the private sector, Barr amassed a record of advancing policies that advocated dragnet government surveillance, mass incarceration, and discriminatory profiling while pushing an aggressive theory of expansive executive power that sidelines Congress' constitutional role in checking the president."

Since resuming the reins as attorney general, Barr has proven to be everything the ACLU feared, and more. From publicly mischaracterizing the findings of the Mueller report to defying congressional subpoenas, intervening in the sentencing of Roger Stone, forcing Geoffrey Berman to step down as U.S. attorney for the Southern District of New York, and allegedly giving the order to assault peaceful Black Lives Matter protesters outside the White House, Barr has strived to transform the Justice Department into a neofascist ministry of the interior dedicated to advancing the personal interests of the president rather than those of the nation.

And don't be misled by Barr's recent revelation, made in an interview with the Associated Press, that the DOJ has found no evidence of widespread voter fraud in the 2020 presidential election. Barr may have incurred Trump's ire with the disclosure and he may even be considering resignation as tensions with Trump mount, but as the multiple litigation debacles of Rudy Giuliani have shown, Barr simply stated the obvious to the AP—that there is no credible case of voter fraud to be made.

In the same interview, Barr disclosed that he had appointed U.S. Attorney John Durham as a special counsel to continue an ongoing probe into the origins of the Trump-Russia investigations conducted by both Mueller and the FBI. Unless Biden's new attorney general rescinds Barr's order, Durham will be in a position to perpetuate the corrosive right-wing myth that agents of the "deep state" had conspired to "stab [Trump] in the back" and cripple his presidency.

Durham's appointment is Barr's cynical parting gift to the country, illustrating once again that there is no honor or redemption to be found in the public works of Bill Barr. Not now, and, absent the unforeseeable, not ever.

Trump's legal woes are looming — will Ivanka snitch on her father?

If you're a fan of TV crime procedurals, you've no doubt seen shows where detectives interrogate two suspects detained in separate and austere holding rooms. The object is to get one of the perps to snitch on his accomplice and "turn state's evidence" in return for leniency.

The dramas may feature different actors and different crimes, but the essential script components are the same: The cops offer immunity, witness protection or some other kind of favorable treatment in exchange for a confession. The arrestees, however, remain defiant, and hang tough. Some sit stone-faced and silent. Others smirk and laugh. Still others hurl back insults, accusing the cops of incompetence and a rush to judgment.

Then, slowly, just before a big commercial break, the fear of doing hard time sets in. One of the suspects reconsiders the possibility that his confederate will cash in on the promise of a deal, leaving him alone to take the rap. The perp's rough exterior cracks. Before you can say "case closed," Miranda rights are waived, and the truth emerges.

In real life, the drill rarely concludes as quickly. And while some suspects invoke the Fifth Amendment and never agree to talk, others do. Just ask Rick Gates why he decided to testify against his former business partner Paul Manafort. Faced with the prospect of a lengthy prison term, Gates opted to save his own skin.

As Donald Trump's desperate plot to subvert the election fails and the end of his presidency approaches, Ivanka Trump could face her own "state's evidence" moment as a result of her role in her father's sketchy business enterprises in New York.

According to the New York Times, both state attorney general Letitia James and Manhattan district attorney Cyrus Vance Jr. are investigating income-tax-avoidance schemes undertaken by the Trump Organization that involve questionable deductions claimed for "consulting fees" paid to Ivanka and other individuals and businesses.

Vance's investigation is criminal in nature, while James' inquiry is civil. The probes, per the New York Times, are being conducted independently, but they overlap. New subpoenas have been issued in each, seeking information about the consulting payments.

The subpoenas come on the heels of a blockbuster story published by the New York Times in late September that revealed Trump paid a mere $750 in federal income taxes the year he won the presidency, and that he paid no income taxes in 10 of the 15 years prior to that.

Documents obtained by the New York Times also indicate that between 2010 and 2018, Trump wrote off "$26 million in unexplained 'consulting fees'" as business expenses on his tax returns. The $26 million included $747,622 paid to an unidentified individual. That amount, it turns out, exactly matches income Ivanka listed as consulting fees on the 2017 financial disclosure forms she filed when she joined the White House staff.

As former New York City prosecutor Elura Nanos wrote in a recent column for the Law & Crime website, "This could be a problem, as Ms. Trump was an executive officer both of the company making the payment and the company doing the consulting. When a key person is on both sides of such a transaction, tax deductions could be illegal if the payments were inflated."

CNN legal analyst Elie Honig, who worked for eight years as an assistant U.S. attorney prosecuting white-collar crimes, described Ivanka's predicament more bluntly in a November 20 on-air interview, remarking:

"I used to do Mafia cases. This is exactly what they would do. If they wanted to take money out of a company and put it in the pocket of an individual, they would say, 'We'll just call it a consulting fee.' That does not make it okay on its own. The question… is did Ivanka Trump actually give consulting services worth $747,000? I mean, think about that."

Ivanka reacted to news of the consulting-fee subpoenas in true Trump fashion, rage-tweeting:

"This is harassment pure and simple. This 'inquiry' by NYC democrats is 100% motivated by politics, publicity and rage. They know very well that there's nothing here and that there was no tax benefit whatsoever. These politicians are simply ruthless."

It's rarely a good idea, whether on television or in the actual world, for a potential suspect to directly attack the investigators. The better course is to let your lawyers do the talking.

Ivanka, of all people, should know this. In 2012, she and Donald Trump Jr. reportedly avoided a felony fraud indictment for misleading prospective buyers of units in the Trump SoHo, a hotel and condo development in lower Manhattan. The siblings narrowly escaped prosecution, but only after high-powered attorney Marc Kasowitz, a longtime Trump family consigliere and a Vance campaign donor, allegedly leaned on the DA behind the scenes to drop the case.

Vance is showing no signs of backing down this time. To the contrary, he is leading a grand jury probe that extends well beyond the possible misuse of consulting fees to determine if any of the president's past business practices violated state fraud and income tax laws. He is also looking into whether the Trump Organization falsified corporate records in connection with the hush money paid to porn star Stormy Daniels and former Playboy model Karen McDougal during the 2016 presidential campaign.

In July, Vance scored a historic legal victory when the Supreme Court denied the president's request to halt Vance's inquiry, rejecting Trump's claims of "absolute immunity" from state criminal prosecutions.

Trump cannot be pardoned for state crimes, and absent a federal pardon, once he leaves office, he will lose the immunity he now enjoys as a sitting president from prosecution for any federal offenses he may have committed. And while Trump's attorneys currently are back before the Supreme Court, asking the panel to narrow the scope of Vance's subpoenas, that effort would appear similarly doomed once Trump departs the White House.

What this means for Ivanka remains to be seen. She has not yet been formally accused of committing a crime, or officially been named as a target of any investigation. Moreover, even if she is eventually indicted, everyone—even a Trump—is presumed innocent until proven guilty beyond a reasonable doubt.

Still, as the clock ticks down on the Trump presidency, the first daughter may well be advised to ponder whether her legal interests and those of her father have diverged to the point where it would be better to cooperate with the authorities, fess up, and ultimately turn state's evidence.

Stay tuned. This story is just beginning.

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.

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