Bill Blum

Was Roe versus Wade doomed from the start?

The leaked Supreme Court memo about the overturning of Roe v. Wade has sent shock waves throughout the United States. The decision, if confirmed, will eliminate the constitutional right to abortion, allowing for states to restrict or ban the practice altogether. The procedure continues to be one of the definitive dividing issues in U.S. politics. A panel of commentators joined Roundtable to discuss the implications of the Supreme Court opinion and the future of abortion access. In this segment, they discuss the landmark decision's legal foundations.

This article originally appeared on Roundtable.

Stacey Lee notes that legal scholars have long questioned the solidity of the legal reasoning behind Roe v. Wade. Protecting federal abortion rights, she explains, would take more than a Supreme Court decision.

"If you want to protect a woman's right to an abortion at the federal level, we need to talk about a clearer constitutional amendment," she says. "Even if the leaked opinion becomes final, it's not anywhere close to the end of this issue. If anything, it makes me concerned that there may be other issues that Americans might have considered well-settled law that might not be anymore."

Bill Blum disputes Justice Alito's complete dismissal of the decision.

"In terms of the soundness of Alito's draft opinion, when he says it's Roe and Casey were egregiously wrong from the start, what that means in judge-speak is that no reasonable, competent lawyer could possibly have upheld Roe on the basis that Roe was decided, and I think that's nonsense," he says.

Nadia Asencio argues that the improvements in contraception since Roe v. Wade significantly impacts its relevance.

"When that all happened, birth control methods were not as effective and accessible as they are today," she says. "Today, in 2022, we are in a completely different world."

Watch the full discussion below:

Roundtable Guests:

Bill Blum, Lawyer & Editor-in-Chief, Blum’s Law

Stacey Lee, professor, Kerry Business School, Johns Hopkins University

Nadia Asencio, Youtuber

Samuel Alito is spearheading the criminalization of abortion

If the draft decision stands, terminating a pregnancy will become illegal in twenty-six states and perhaps the nation as a whole.

Make no mistake: If U.S. Supreme Court Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization becomes final without significant revisions, abortion will once again become a crime in the United States. And it won’t just become a crime in some states. If Republicans regain control of Congress in 2022 and the White House in 2024, there’s a very real possibility that abortion could become a federal offense.

To understand how this could happen, it’s necessary to grasp the sweeping and patently ideological nature of Alito’s draft. The draft overrules both Roe v. Wade and Planned Parenthood v. Casey, the twin pillars of the federal constitutional right to abortion. The opinion doesn’t just chip away at the federal right or uphold Mississippi’s statute banning nearly all abortions after fifteen weeks—it abolishes the federal right entirely and without limitation.

Alito stresses that both the Roe and Casey decisions were “egregiously wrong” from the start because the word “abortion” doesn’t appear anywhere in the first eight amendments to the Constitution, or anywhere else in our national charter. As a result, he writes, abortion cannot be deemed a right explicitly reserved to the people.

Alito also argues that abortion cannot be considered an implied or “unenumerated” right under the Fourteenth Amendment—as Roe and Casey held—because the right is not “deeply rooted in our history and tradition.” To the contrary, he contends, when the Fourteenth Amendment was ratified in 1868, “three-quarters of the States [had] made abortion a crime at all stages in pregnancy.”

Against this backdrop, Alito concludes the court is free to overrule both Roe and Casey—decided in 1973 and 1992, respectively—unconstrained by the doctrine of stare decisis, which holds that courts must adhere to precedent. But not to worry. Alito’s draft assures us that overruling Roe and Casey is a good thing, and will benefit everyone by returning the issue of abortion to “the people’s representatives.”

To drive home the point, Alito likens his draft to Brown v. Board of Education, the landmark case that overturned Plessy v. Ferguson and officially ended segregation in public schools. “Some of our most important constitutional decisions have overruled prior precedents,” he notes, equating his draft to Brown, and Roe and Casey to the dreaded Plessy.

The truth, of course, is the exact opposite. While controversial, Roe and Casey were decided squarely in line with prior Supreme Court precedents that extended the concept of liberty under the Fourteenth Amendment to privacy interests like the right to interracial marriage (Loving v. Virginia, 1967), the right to obtain contraceptives (Griswold v. Connecticut, 1965), and the right to not be sterilized without consent (Skinner v. Oklahoma, 1942).

Nor is it true that abortion at all stages was mostly illegal before Roe. As University of Illinois history professor Leslie J. Reagan explained in her definitive study, When Abortion Was a Crime, “During the eighteenth and early nineteenth centuries, abortion of early pregnancy was legal under common law. Abortions were illegal only after ‘quickening,’ the point at which a pregnant woman could feel the movements of the fetus (approximately the fourth month of pregnancy).”

The belief that life starts at conception, one of the primary arguments on the religious right for blanket, no-exception abortion bans, is also relatively new. “At conception and the earliest stage of pregnancy before quickening, no one believed that a human life existed; not even the Catholic Church took this view,” Reagan wrote. “Rather, the popular ethic regarding abortion and common law were grounded in the female experience of their own bodies.”

Alito fails to mention that the impetus to outlaw abortion began only in the 1850s, spurred by the fledgling American Medical Association’s desire to gain control over the practice of medicine and curtail the work of midwives and homeopaths.

The AMA’s crusade, Reagan instructed, was a form of backlash against the rising aspirations of women and thus “antifeminist at its core.”

In a Los Angeles Times op-ed published on May 4, entitled “The Supreme Court Flunks Abortion History,” Aaron Tang, a law professor at the University of California, Davis, delivered a smackdown of Alito’s scholarship.

“Our nation’s history actually does support a right to abortion for much of early pregnancy,” Tang advised. “The best evidence is that only sixteen of thirty-seven states banned pre-quickening abortions when the Fourteenth Amendment was ratified. In the other twenty-one states, abortion remained perfectly lawful through roughly sixteen weeks of pregnancy.”

So much for fairness and accuracy.

If Alito’s draft becomes final, abortion will likely become illegal in twenty-six states, according to the Guttmacher Institute. These include states that enacted laws before Roe that have never been removed from the books; states with so-called “trigger” laws that will take effect automatically when Roe is overruled; and states with constitutional bans that will be activated and enforced post-Roe.

The new abortion bans will also spark criminal prosecutions. According to an analysis by Forbes, once Roe is jettisoned, performing an abortion will become a felony in more than a dozen states.

While most prosecutions likely will be directed at doctors and clinics, the National Association of Criminal Defense Lawyers (NACDL) warned in a comprehensive report last year that state laws defining “personhood” to include fetuses will “expand the reach of criminal liability” for pregnant people who self-induce miscarriages. Just last week, in response to the leak of Alito’s draft opinion, the Louisiana state legislature advanced a bill that if enacted will classify abortion as homicide.

And there is no reason to believe the GOP and the “right-to-life” movement will stop at the state level. In an amicus curiae (“friend of the court”) brief

submitted in the Dobbs case, Princeton University professor Robert George and University of Adelaide professor John Finn argued that “unborn children” are persons from the moment of conception and that Congress has the power to enact legislation protecting the unborn. Alito’s draft cites Gage and Finn’s brief with approval, albeit in a footnote.

In a May 6 interview with USA Today, Senate minority leader Mitch McConnell gave the game away, saying that a national abortion ban would be on the agenda if the Supreme Court overturns Roe.

“[I]f and when the court makes a final decision, I expect everybody will be more definitive,” McConnell said. “But I don’t think it’s much [of a] secret where Senator Republicans stand on that issue.”

There is already a federal statute that makes the performance of “partial birth abortions” a felony. In 2007, the Supreme Court upheld the statute in Gonzales v. Carhart by a vote of 5-4, with Chief Justice John Roberts, and Justices Clarence Thomas and Alito in the majority.

All it would take for a more comprehensive federal ban to take effect is a Republican-controlled Senate that carves out an exception to the filibuster rule for fetal personhood legislation, and the reelection of Donald Trump or the installation of another ultra-right candidate to sign the legislation into law.

And then there is the domino-effect that overturning Roe will have on other privacy issues. With Roe gone, marriage equality and LGBTQ+ rights will likely be the next to fall. If these federal protections are stripped away, states which still have draconian sodomy laws on the books could begin enforcing them once more. After decades of condemning liberal justices for lacking impartiality and engaging in “judicial activism,” the conservative supermajority dominating the Supreme Court appears more than willing to use judicial power to remake the United States into a white Christian nationalist country.

But the true majority—Americans who support abortion rights and democracy—are not powerless. We have the numbers and the incentives to mobilize in the streets and at the ballot box to overwhelm the radical right and force passage of state and federal legislation in support of civil liberties and civil rights.

It will take time, but if necessary, we can even win legislation to expand the number of Justices on the Supreme Court to bring the court in line with the needs and values of the twenty-first century. We only have to realize our power and commit ourselves to using it.

Why the House January 6th panel should subpoena Donald Trump

The January 6 committee has made it official: After a year of meeting in closed session, interviewing over 900 witnesses and gathering more than 100,000 documents, the committee will hold at least eight public hearings. The action will commence on live TV with the first hearing on June 9.

If all goes as anticipated, the hearings will prove what most of us already believe--that the violence that nearly toppled American democracy was incited by none other than the 45th president of the United States, Donald John Trump, and his inner circle of sycophants, grifters, advisers, aspiring felons and assorted nut-jobs.

"The hearings will tell a story that will really blow the roof off the House," Jamie Raskin, D-Md., said late last month at an event hosted by Georgetown University's Center on Faith and Justice in Washington, D.C.

To Raskin, who is one of seven Democrats on the committee and a recognized constitutional scholar, Jan. 6 is the story of an attempted coup orchestrated by Trump. "No president has ever come close to doing what happened here in terms of trying to organize an inside coup to overthrow an election and bypass the constitutional order," Raskin added at Georgetown. And no president, he continued, has ever used “a violent insurrection made up of domestic violent extremist groups, white nationalist and racist, fascist groups in order to support the coup."

Echoing Raskin, the committee’s chairman, Rep. Bennie Thompson, D-Miss., says the panel will “tell the story about what happened” by way of a multi-media presentation, combining live witness testimony with videos of the attack on the Capitol shot in real-time. According to CNN, the committee has even hired a prominent writer—whose identity has not yet been disclosed—to draft a compelling script to accompany the presentation. Prepare yourselves for a narration delivered by James Earl Jones, Morgan Freeman, Peter Coyote or someone of equal gravitas. Prepare yourselves, in short, not only to be informed, but to be entertained as well.

At the end of the day, however, nothing the committee presents will matter unless the hearings attract millions of eyeballs. Decades ago, Americans were transfixed by the Senate Watergate hearings. Today, sadly and tragically, the public’s interest appears to be waning. As a society, we are both polarized and impaired by short attention spans.

According to an analysis of recent polling published by FiveThirtyEight, Americans are moving on from Jan. 6, even if Congress isn’t. Among the polls cited in the analysis are a Navigator Research survey from April 4 that found 39 percent of registered voters think the Jan. 6 committee is too focused on the past. An earlier poll from the Pew Research Center, also cited by FiveThirtyEight, contained similar findings.

At the same time, several other polls taken this year show that Republicans, by overwhelming majorities, continue to believe the 2020 presidential election was stolen. An even more alarming poll by Hart Research and The New Republic magazine, published on April 14, found that 57% of GOP voters believe the insurrection was “an act of patriotism.”

With metrics like these, it wouldn’t be at all surprising if the Jan. 6 hearings wind up with ratings rivaling those of the Weather Channel. Viewers of MSNBC and CNN will tune in. Viewers of Fox, Newsmax and OAN will tune out.

There is one way, however, for the Jan. 6 committee to seize the moment and avoid becoming an historical footnote—it can subpoena Trump and add him to its witness list.

Trump may be the most loathsome charlatan to ever sit behind the Resolute Desk in the Oval Office, but he is still boffo on the small screen. If Jamie Raskin and his colleagues want to tell the story of Jan. 6 to the largest possible audience, they would be well advised to open and close every hearing with an appeal to Trump to come forward and tell his version of the story. To drive home the point, the committee could set aside a chair reserved exclusively for Trump at the witness table. The chair would remain empty and unoccupied unless and until Trump opted to plop his ample girth upon it.

Now, I’m not naïve. I don’t believe for a second that Trump would obey a subpoena or appear voluntarily. Nonetheless, it would be political malpractice not to call him to testify. And at least some members of the Jan. 6 committee are on record agreeing with me. In October 2021, in an appearance on CBS’ “Face the Nation, ” chairman Thompson said that no one, not even Trump, was “off limits” for the committee. And as recently as April 14, another member, Rep. Zoe Lofgren, D-CA, told National Public Radio that “it would be a mistake” to finish the work of the committee without inviting Trump to take the stand.

Serving a subpoena on Trump would be fully consistent with those past declarations, and undercut any criticism, whether offered by Trump or his enablers, that the committee had lost its nerve and somehow ducked the former president.

Trump has long said that he wants a televised debate about election fraud. He’s boasted that any such event would turn into a “ratings bonanza.” Slapping him with a subpoena would be the committee’s way of calling his bluff and exposing him as a coward when he inevitably backs down.

Subpoenaing Trump would also be a bold move, and just the kind of gesture a dying democracy needs for its revival.

'No single justice is more responsible for this crisis than Clarence Thomas': can SCOTUS be redeemed?

As I have written before, the U.S. Supreme Court is facing a crisis of legitimacy driven by a growing public perception that the court is a political institution dominated by conservative activists masquerading as impartial guardians of the Constitution.

No single justice is more responsible for this crisis than Clarence Thomas. Scandal and controversy have plagued Thomas since he was credibly accused of sexual harassment by law professor Anita Hill during his 1991 Senate confirmation hearing. Since then, he has carved out a well-deserved reputation as the court’s most rightwing jurist. Thomas is also an ardent proponent of “originalism”—the legal philosophy that holds that the Constitution should be understood today as closely as possible to the way it was understood when it was written in the eighteenth century.

In 1993, according to The New York Times, Thomas told two of his law clerks that he planned to serve on the court until 2034, and until then would continue to make the lives of liberals “miserable.”

On January 19 of this year, Thomas attempted to make good on that pledge in the case of Trump v. Thompson. By a margin of 8-1, the court rejected a lawsuit filed by the former President to block the National Archives from releasing White House documents sought by the House Select Committee investigating the January 6 insurrection at the U.S. Capitol. Thomas was alone in his dissent.

Were it not for some dogged sleuthing by investigative journalists Bob Woodward and Robert Costa, Thomas’s dissent might have been forgotten amid the many other conservative votes he has registered during his lengthy career. Writing in The Washington Post on March 24, Woodward and Costa reported that Thomas’s wife, Virginia (who goes by the nickname Ginni), had texted White House Chief of Staff Mark Meadows twenty-nine times between early November 2020 and mid-January 2021, urging Meadows to push to overturn of the results of the presidential election.

The text messages have sparked demands from Democrats and legal commentators that Thomas recuse himself from all future cases related to the insurrection and any other litigation surrounding the 2020 election.

So far, Thomas has not publicly addressed his wife’s texts, nor has he given any indication that he will heed calls to not participate in such matters.

This is by no means the first time Justice Thomas has faced recusal demands as a result of his wife’s aggressive political activism and his own intransigence. In 2011, seventy-four House Democrats signed a letter calling for Thomas to stand aside from any appeals involving the Affordable Care Act in light of Ginni Thomas’s record as a highly paid lobbyist working against national health care reform. He declined.

Thomas also failed to recuse himself from the court’s Muslim travel ban ruling in 2018 (Trump v. Hawaii), even though Ginni Thomas reportedly had been paid $200,000 in 2017 and 2018 by a group supporting the ban.

By the fall of 2020, as the election approached, Ginni Thomas’s insider connections to the bases of conservative power expanded. She became a leader in Groundswell, a coalition of hardliners dedicated to fighting progressivism and keeping Donald Trump in office. Parlaying her resume and her marriage to Clarence Thomas, who Trump once described as his “favorite Justice,” she gained extraordinary access to Meadows and the inner circles of the White House.

Although Ginni Thomas has denied trying to influence her husband’s deliberations, her text exchanges with Meadows raise deeply troubling ethical concerns. Among the messages is one she sent to Meadows on November 24, 2020, disclosing that she had discussed the election issue with “my best friend.” While the texts do not identify the friend, this is a term the couple has routinely used to refer to each other over the years.

Given that backdrop, Clarence Thomas’s participation in the Thompson case was entirely improper and outrageous. A federal statute stipulates that “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” A subsection of the same statute requires Justices and judges to disqualify themselves when they know that their spouses have any financial “or other interest that could be substantially affected by the outcome of the proceeding.”

The federal statute is similar to laws in place across the country that apply to state-court judges. Like the federal statute, such laws are designed to avoid not only actual instances of judicial bias but also the appearance of bias.

Even if Thomas didn’t know about his wife’s text messages or her admitted attendance at the Stop the Steal demonstration preceding the January 6 storming of the U.S. Capitol, he certainly knew about her activism in general as well as her devotion to Trump. In the view of NYU Law School Professor Stephen Gillers and other prominent legal ethicists interviewed by The New York Times, Thomas had an affirmative duty to inform himself as to her activities. As Gillers put it, Justice Thomas “cannot close his ears and pretend that he’s ignorant. Conscious avoidance of knowledge is knowledge.”

Unfortunately, there is little, if anything, that can be done to bring Thomas to heel. The Constitution provides him with lifetime tenure. Impeachment, however justified, is a pipedream, given the two-thirds Senate majority needed for conviction. Also out of reach, at least for the foreseeable future, are efforts to expand the size of the court or to impose term limits on the justices.

The Supreme Court stands at the pinnacle of the U.S. legal system. Yet its members are free to ignore the federal recusal statute and, unlike every other federal and state court in the nation, our highest court bewilderingly lacks a binding written code of ethics. There is no way to appeal its decisions.

According to a recent Quinnipiac poll, 52 percent of Americans believe Thomas should step down from all 2020 election cases. As more details about the plot to overturn the election are revealed and more related cases reach the court, that percentage is likely to increase.

Maybe someday Thomas will have his reckoning. Let’s just hope that day arrives before 2034, the year he long ago set for his retirement.

Merrick Garland has more than enough evidence to indict Donald Trump

I know you've heard this before--that accountability is coming for Donald Trump and his cronies for triggering the Jan. 6th insurrection--but this time, something new and different has happened. On March 28, Federal District Court Judge David O. Carter ruled that Trump and former Chapman University law professor John Eastman "more likely than not" committed two felonies in their efforts to overturn the results of the 2020 presidential election: obstruction of an official proceeding of Congress, and conspiracy to defraud the United States.

Carter's ruling runs 44 pages and is meticulously detailed. Among other events, it chronicles Eastman's role in drafting two memos for the Trump campaign that set forth a plan to nullify the Electoral College votes in seven swing states when Congress met in joint session on Jan 6, 2021 to certify Joe Biden's victory. The ruling also summarizes Eastman's meetings with Trump, Vice President Mike Pence and other White House officials to execute the plan, as well as Trump's infamous phone call to Georgia Secretary of State Brad Raffensperger.

Subject to further appeals, the ruling ends a lawsuit Eastman filed to prevent the House Select Committee investigating the insurrection from obtaining 111 emails he had sent or received on his Chapman email account between November 3, 2020 and January 20, 2021. Eastman argued the emails are protected from disclosure under the attorney-client privilege. The committee argued the emails fall within the "crime-fraud exception," which holds that the privilege does not cover communications made with the intent to further or conceal a crime. Carter ordered Eastman to turn over 101 of the emails, finding the crime-fraud exception applied.

Although Carter's decision only affects Eastman directly, it has profound implications for both Trump and Attorney General Merrick Garland, the nation's top law-enforcement officer. In words that surely will get Garland's attention, Carter wrote:

The illegality of the plan [to overturn the election] was obvious. Our nation was founded on the peaceful transition of power, epitomized by George Washington laying down his sword to make way for democratic elections. Ignoring this history, President Trump vigorously campaigned for the Vice President to single-handedly determine the results of the 2020 election. As Vice President Pence stated [at the time], 'no Vice President in American history has ever asserted such authority.' Every American—and certainly the President of the United States—knows that in a democracy, leaders are elected, not installed. With a plan this 'BOLD,' President Trump knowingly tried to subvert this fundamental principle.

Carter's ruling marks the first time a sitting judge has found that that Trump likely violated federal criminal law. And while the likelihood finding falls well below the reasonable-doubt standard that must be met to secure a criminal conviction, it is more exacting than the probable-cause standard Department of Justice lawyers use to decide when to recommend or commence prosecutions. The probable-cause test is also used by federal grand juries use to decide whether to return indictments.

Why there are very few legal avenues for holding Vladimir Putin accountable for war crimes

On March 16, the International Court of Justice (ICJ) ordered Russia to “immediately suspend” its invasion of Ukraine. The ruling came on a resounding 13-2 vote, with only the court’s Russian and Chinese judges dissenting.

This story first appeared in 'The Progressive.'

And yet the death and destruction continue. Russia has openly defied the ICJ, and the court has no means to enforce its order. Even if a negotiated settlement is reached in the coming days or weeks, the weaknesses of international humanitarian law have once again been tragically exposed.

Still, this is no time to give up on the rule of law as an alternative to war, whether waged by Russia, the United States, or any other global power. The ICJ should be applauded as a voice of reason and peace on Ukraine; its ceasefire order expresses the conscience of the world.

The International Criminal Court (ICC) has also opened an investigation into the war in Ukraine. Like the ICJ, the ICC is based in The Hague, Netherlands. The two tribunals are separate and independent institutions that serve complementary purposes.

Also known as the “World Court,” the ICJ sits in the Peace Palace, a turreted red-brick edifice constructed in the Neo-Renaissance style in 1913. The court is the principal judicial organ of the United Nations, and is designed to adjudicate disputes between nations. It does not prosecute individuals; that’s the job of the ICC.

Since convening its first trial in 1947, the ICJ has heard some 182 cases. Many involve boundary, aviation, and fisheries disputes, but a few have addressed weighty charges of genocide and human rights abuses in the former Yugoslavia, Iran, and now Ukraine.

Although it usually takes the ICJ about two years to resolve a case, the court has put its response to the invasion of Ukraine on a fast track. The court held a public hearing on March 7 to review Ukraine’s emergency application for a ceasefire and scheduled March 8 to consider Russia’s side of the controversy. Russia submitted written objections to the court’s jurisdiction, but otherwise declined to appear. Undaunted, the court forged ahead, live-streaming the March 7 session on the Internet. The March 8 hearing was canceled.

That the court would rule in Ukraine’s favor was not a foregone conclusion. The court’s jurisdiction is limited by the provisions of the U.N. Charter, and its own governing statute. It can hear contested matters involving countries that have assented to its “compulsory jurisdiction” for all purposes or that have agreed to submit specific disputes to it under the terms of international treaties they have signed.

Currently, only seventy-three countries have accepted the ICJ’s compulsory jurisdiction. They include most of the nations of western and northern Europe, but neither the Russian Federation nor Ukraine is among them. Neither is the United States, which hypocritically withdrew from compulsory jurisdiction in 1985 after it was sued in the ICJ by Nicaragua for fomenting civil war and mining Nicaragua’s harbors.

In its emergency application, Ukraine invoked the ICJ’s jurisdiction under the provisions of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which both it and Russia have signed. The court’s subsequent ceasefire order stressed the risk of irreparable harm to Ukraine and the urgent need to stop the bloodshed. The decision, however, is only provisional; a formal trial on the merits will be set for a later date.

The International Criminal Court, by contrast, has the potential to deliver more immediate real-world consequences for Russian military personnel and possibly for Vladimir Putin himself.

The ICC was founded after a 1998 conference attended by 160 nations in Rome. An agreement known as the Rome Statute, which took effect in July 2002, established the ICC as the first treaty-based international criminal court able to investigate and try individuals—both governmental and non-state actors—accused of genocide, war crimes, and crimes against humanity.

The court, housed in a modern steel-and-glass office building, consists of eighteen judges elected by its Assembly of State Parties. It also employs a full-time independent prosecutor.

The Rome Statute authorizes the court to impose heavy jail sentences, up to life imprisonment, on those found guilty. According to its website, the court has opened thirty cases since its inception, with some cases having more than one suspect. To date, there have been ten convictions.

Some 123 countries have signed the Rome Statute, but both the United States and Russia are scofflaws. The United States signed the statute in 2000 but withdrew from it in 2002 over fears that the court would one day charge U.S. soldiers or officials with international crimes.

Russia withdrew in 2016 after the court issued preliminary findings classifying Russia’s annexation of Crimea and hostilities in the Donbas region as international conflicts warranting further investigation.

The International Criminal Court has been criticized for targeting African human rights violators and overlooking European and U.S. malefactors. But in a historic turnabout, the court opened investigations in 2020 into alleged war crimes committed in Afghanistan and Palestine. The Trump Administration responded by revoking the visas of the court’s lead and assistant prosecutors and freezing their U.S. assets. The Biden Administration lifted these sanctions, but continues to oppose both probes.

The ICC promises to be even more aggressive on Ukraine under the leadership of its new chief prosecutor Karim Khan, a London-based barrister, who took office last year. Khan opened the ICC’s Ukraine investigation on March 2 after receiving requests from thirty-nine state parties to the Rome statute, an unprecedented number. Since then, he has personally visited both Poland and Ukraine to begin the arduous process of gathering evidence of war crimes.

Though Ukraine has never joined the court, it has formally accepted the ICC’s jurisdiction. Russia has not.

With or without Russia’s cooperation or membership in the ICC, the investigation will proceed. Under the Rome Statute, nationals of non-member states can be held responsible for war crimes. Soldiers on the ground, their commanding officers, and those who give the orders at the highest levels are all at risk.

What this means for Putin and his cronies is that, if indicted, they will be subject to arrest if they are apprehended in the territory of a cooperating member state.

What this means for the rest of the world, including the United States, is a reminder that no individual, and no nation, is above the law. The law has a long memory—especially when it comes to war crimes.

The United States should join the ICC to hold Vladimir Putin accountable for war crimes: lawyer

Is there a legal remedy for Russia's brutal invasion of Ukraine?

The answer, sadly, is probably not. International law consists of a constellation of treaties, conventions, customs, rules of commerce and engagement, and high-minded principles. All, however, are dependent on the voluntary cooperation of sovereign nations, especially the great powers. In times of war, the law of the jungle all too often prevails.

In the short run at least when it comes to Ukraine, the jungle has overtaken the rule of law. Yet even as the carnage accelerates, there are some hopeful signs in the legal proceedings currently underway at the world's two most prominent tribunals--the International Court of Justice (ICJ) and the International Criminal Court (ICC), both of which are based in The Hague, Netherlands.

On March 7, the ICJ held a public hearing on the invasion in response to Ukraine's emergency request for the issuance of "provisional measures," the rough equivalent of a preliminary injunction, to stop the invasion. A decision could be rendered in a matter of days. In the meantime, the ICC has opened what promises to be a lengthy investigation into the conflict, focusing on the commission of war crimes, crimes against humanity and allegations of genocide.

I have more than a passing familiarity with both institutions. In 1985, I traveled to the ICJ to report on the case of Nicaragua v. United States. In 2014, I turned my attention to the ICC, conducting a series of interviews with human-rights experts and court personnel, and writing a set of columns on Palestine's request for an investigation of alleged Israeli war crimes.

These experiences have given me a deep appreciation of the strengths and weaknesses of both courts.

The ICJ

Also known as the "World Court," the ICJ sits in the Peace Palace, a regal red-brick Neo-Renaissance mansion that opened its doors in 1913. The court is the principal judicial organ of the United Nations, and is the successor of the Permanent Court of International Justice, which operated under the auspices of the League of Nations from 1920-1945.

Like its predecessor, the ICJ hears disputes between nations. It does not hear cases involving individuals.

Flag of the United Nations

Flag of the United Nations

Wikimedia Commons

Since convening its first disputed matter in 1947, a maritime controversy between the United Kingdom and Albania over the Corfu Channel, the ICJ has heard some 182 cases. Many have involved boundary, aviation and fisheries disputes, but a few have addressed weighty issues such as charges of genocide and human rights abuses in the former Yugoslavia, Iran and elsewhere.

Although every member of the United Nations is also a member of the ICJ, not all contested cases are submitted to the court for resolution. The court's jurisdiction is limited by the provisions of the U.N. Charter. It can hear contested cases involving countries that have assented to its compulsory jurisdiction or have agreed to submit disputes to it under the terms of international treaties that they have signed. The court also can issue advisory opinions on legal issues at the request of the U.N. Security Council.

The court is composed of 15 judges elected to nine-year terms by the U.N. General Assembly and the Security Council. Joan Donoghue, an American lawyer, has served as a judge on the court since 2010. She was elected as its president in 2021.

Currently, 73 countries have accepted the ICJ's compulsory jurisdiction. They include most of the nations of western and northern Europe. The Russian Federation and the U.S. do not recognize the court's compulsory jurisdiction.

The court's jurisdiction on the Ukraine invasion has been invoked under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which both Russia and Ukraine have signed. Ukraine argues not only that the court has jurisdiction to entertain the case under the convention, but also that Russia has used false claims of Ukrainian genocide committed in the eastern Donbas region as a pretext to justify what has now become a full-scale invasion of the entire country.

Ukraine is asking the court to order Russia to immediately suspend its military operations. Judging from the tone and tenor of the March 7 hearing, the ICJ appears poised to find it has jurisdiction, and to issue the requested order. Should the court do so, the case will move to a trial on the merits, at which stage, if Ukraine is again successful, the court could order Russia to make reparations for the catastrophic damage it has inflicted on Ukraine's economic infrastructure and the enormous and mounting loss of innocent life it has caused.

Apart from its advisory opinions, the ICJ's decisions are technically binding on all parties. Enforcement of the court's decisions, however, is left to the Security Council. And since Russia is a member of the council and every council member wields veto powers, Russia is certain to block any remedies from being implemented.

In many respects, the Ukraine case is similar to the application brought by the Sandinista government of Nicaragua against the United States. In 1984, Nicaragua took the U.S. to the ICJ, charging the U.S. with violating international law by arming the Nicaraguan Contras and mining the country's harbors. After the ICJ determined it had jurisdiction to hear the controversy, the Reagan administration withdrew from the court's compulsory jurisdiction and refused to appear for the subsequent trial on the merits, which took place in 1985 in the absence of the U.S. In 1986, the ICJ issued a final ruling in Nicaragua's favor and awarded reparations to the Central American nation--a debt now estimated at $17 billion that the U.S. has yet to pay.

Following the U.S. playbook, Russia notified the ICJ on March 1 that it would boycott the hearing on Ukraine's request for provisional measures. As a result, the court canceled a session originally set for March 8 to consider Russia's side of the case.

In an open letter released in late February, Russia's longtime legal counsel at the ICJ--the renowned French human-rights lawyer Alain Pellet, who I met at the Peace Palace in 1985 during the Nicaragua trial--declared that he could no longer work for his former client. Pellet wrote: "...enough is enough...lawyers can defend more or less questionable causes. But it has become impossible to represent in forums dedicated to the application of the law a country that so cynically despises it."

Alain Pellet, French Human-Rights Lawyer

Alain Pellet, French Human-Rights Lawyer Wikimedia, Creative Commons

Although Russia undoubtedly will ignore the court's ultimate findings, it will do so at its long-term peril. A decision against Russia will strengthen the sanction regime imposed by the international community and will isolate Russia from the modern world for decades to come.

The ICC

The ICC was founded after a 1998 conference attended by 160 nations in Rome. The conference produced an agreement known as the Rome Statute which took effect in July 2002, establishing the ICC as the first treaty-based international criminal court for the purpose of investigating and trying individuals — both governmental and non-state actors — accused of genocide, war crimes, crimes against humanity and crimes of aggression, as defined by the Geneva Conventions, the Rome Statute and other sources of international law. The Rome Statute authorizes the court to impose heavy jail sentences, up to life imprisonment, on those convicted.

Although the ICC is affiliated with the United Nations, it is legally independent. An agreement reached in 2004 permits the U.N. Security Council to refer cases directly to the ICC. The court is also authorized to conduct investigations at the behest of member states, or at the request of a non-member state that willingly submits to the court's jurisdiction.

The International Criminal Court

The International Criminal Court Wikimedia

Today, 123 nations are parties to the Rome Statute, acceding to the ICC’s jurisdiction. Membership in the court and cooperation with the enforcement of its judgments are voluntary. The tribunal has no police or arrest powers of its own.

The United States signed the Rome Statute in 2000 but withdrew from it in 2002 over fears that the court would one day charge American soldiers or officials with international crimes. Russia withdrew in 2016 after the court issued preliminary findings that classified Russia's takeover of Crimea and hostilities in the Donbas region as international conflicts warranting further investigation.

The ICC consists of 18 judges elected by its Assembly of State Parties. It also employs a full-time independent prosecutor. The current chief prosecutor is Karim Khan, a London-based barrister who took office last year.

On March 2, Khan announced he was opening an investigation into the war in Ukraine after receiving requests from 39 state parties to the Rome statute, an unprecedented number. Khan pledged to “immediately proceed” to probe alleged war crimes perpetrated in Ukraine by any and all individuals dating back to 2013 when protests erupted against a Russia-friendly government in Kyiv.

According to its website, the court has opened 30 cases since its inception, with some cases having more than one suspect. ICC judges have issued 35 arrest warrants, including those for the apprehension of Ugandan rebel leader Joseph Kony, and the deceased Libyan strongman Muammar Gaddafi. As a result of cooperation from member states, 17 people have been detained in the ICC's detention center in a Dutch prison complex on the outskirts of The Hague. Thirteen suspects remain at large.

Trials afford defendants due process protections similar to those in the U.S. No trials are conducted in absentia. To date, the court has returned ten convictions and four acquittals. Upon conviction, defendants are transferred to prisons located in member states outside the Netherlands.

The ICC has been criticized for targeting African human-rights violators and overlooking European and American malefactors. But in an important turnabout, the court opened investigations in 2020 into alleged war crimes committed in Afghanistan, Israel, and Palestine. The Trump administration responded by revoking the visas of the court's lead and assistant prosecutors and freezing their U.S. assets. The Biden administration lifted the sanctions but continues to oppose both probes.

Khan appears determined to be more aggressive than his predecessors. As the Ukraine investigation gets underway, he has appealed not only to legal experts for relevant evidence to determine if indictments should be issued but to members of the general public. Anyone with information can email his office via otp.informationdesk@icc-cpi.int.

The fact that Russia is not a member of the ICC will not insulate either its soldiers, their commanding officers, or Vladimir Putin himself from charges of war crimes, crimes against humanity, or genocide. Under the terms of the Rome Statute, aiders and abettors--including those who provide the means for the commission of crimes--can be held as accountable as direct perpetrators. [The crime of aggression is off the table, however, as the Rome Statute limits prosecutions for that offense to nationals of member states].

What this means for Putin and his cronies is that once indicted, they will remain subject to arrest if apprehended in the territory of a cooperating member state. We may never see Putin in the dock, but given the growing and overwhelming worldwide condemnation of the war, it's a possibility that can no longer be dismissed.

As Americans, we can do our part for peace by demanding an end to the war. We can also insist that our government accept the compulsory jurisdiction of the ICJ, and sign the Rome Statute to become a member of the ICC. As moral beings who value human life, we have a duty to do no less.

Bill BlumBY BILL BLUM

Panel debates whether American imperialism can save Ukraine

Lawyer and journalist Bill Blum on Monday joined a discussion with political analyst Eric Draitser and surgeon and former intelligence officer Dr. Keith Rose about the conflict in Ukraine and what it means for the world.

The debate focused on a few key issues; namely, how the United States and its allies should check Russian President Vladimir Putin's aggression to prevent a catastrophic loss of life in Ukraine. The panelists also contemplated the impact that Putin's invasion of Ukraine will have on future geopolitics.

One crucial takeaway, however, is the notable differences between American and Russian imperialism.

"The U.S. has been the single global dominant imperial power for more than a generation, since the end of the Cold War, and that is now changing," Draitser said. "What Putin has done is revealed that the world is unfortunately extremely fragmented, and that what comes after unipolar global imperialism is more and deadlier imperialisms."

While Blum agrees that the United States can be characterized as an imperial power, he argues that it's important to consider how it can intervene on behalf of the Ukrainian people.

"America is an imperial power. That doesn't mean that U.S. society is the same as Russia," Blum said. "Russia is a dictatorship. There's no freedom of the press in Russia. There's no freedom of assembly in Russia. Russia is a homophobic state. It's a kleptocratic state, but that doesn't detract from the fact that the U.S. is an imperial power."

The most urgent issue, Blum insists, is ending the war.

"The question we have to ask ourselves is not only what are we against, but what are we for," Blum said.

Watch below:

Debunking Vladimir Putin's antisemitic Ukraine propaganda

The Russian invasion of Ukraine has come to my Facebook page. You may have experienced something similar if you haven’t already abandoned the “metaverse.”

This article first appeared on Roundtable.

Broadly speaking, my Facebook visitors have come in three varieties: Trolls (some perhaps afflicted with mental illness) out to cause trouble and spread disinformation about the conflict; leftists who cite U.S. foreign policy as the primary cause of the war; and liberals and progressives who blame Russian President Vladimir Putin for the carnage without attributing fault to the U.S.

These cross-currents converged after I posted a Feb. 23 tweet by Yale University philosophy professor Jason Stanley, addressing the claim that Ukraine is a Nazi-run state.

Stanley is a leading expert on fascism, and the author of the highly acclaimed study, How Fascism Works. His tweet stated:

“The President of Ukraine is Jewish, and has many family members who died in the Holocaust. Putin's claim that he is invading to ‘de-Nazify Ukraine’ should shock the world.”

Stanley’s observation went viral, eliciting over 44,000 Twitter “likes.” It also sparked a minor shockwave on my Facebook page.

I responded to the traffic uptick, as is my custom, by blocking anyone—or any bot (you never meta know)—suspected of trolling or in need of therapy.

I engaged with other posters, however, and was heartened to find intelligent life on both sides of the divide. Without identifying anyone by name, there were some in the anti-U.S. camp who pointed out Ukraine’s long history of anti-Semitism. Others noted that Ukraine’s present-day national guard includes a virulent neo-Nazi unit known as the Azov Battalion. Still others condemned the provocative decision to expand NATO to the borders of Russia after the collapse of the Soviet Union.

On the opposite flank were posters who to varying degrees echoed the thinking of Professor Stanley, who followed up his earlier tweet with a column for the Guardian on Feb. 26, writing:

“Vladimir Putin is himself a fascist autocrat, one who imprisons democratic opposition leaders and critics. He is the acknowledged leader of the global far right, which looks increasingly like a global fascist movement.

“Ukraine does have a far-right movement, and its armed defenders include the Azov battalion, a far-right nationalist militia group. But no democratic country is free of far-right nationalist groups, including the United States. In the 2019 election, the Ukrainian far right was humiliated, receiving only 2% of the vote. This is far less support than far-right parties receive across western Europe, including inarguably democratic countries such as France and Germany.”

Harnessing my experience as a judge and training as a mediator, I attempted to bridge the gap, posting:

“To try -- and I use that word because it is very difficult-- to understand what is happening in Uk [Ukraine], you have to embrace some seemingly contradictory ideas. Yes, there are anti-Semites in Uk (Azov). But Zelensky is not a Nazi, either with a small "n" or a capital one. Yes, NATO has encircled Russia and that was a tragic error (in my view), but Putin is not Uncle Joe [Stalin] defending the world against fascism.”

Without getting overly academic, what I meant is that to understand the war in Ukraine in a way that can lead to a peaceful resolution and a better world, we need to sharpen our abilities to think critically. We need to adopt what researchers call the “paradox mindset” and engage in “integrative thinking” rather than all-or-nothing rigidity.

The most revolutionary thinkers actively consider “multiple opposites or antitheses simultaneously,” Loizos Heracleous and David Robson wrote in an article published by the BBC in Nov. 2020, citing the pioneering work of psychiatrist Albert Rothenberg, who has spent decades examining the creative process.

“Einstein,” Heracleous and Robson explained, “contemplated how an object could be both at rest and moving depending on the position of the observer, a consideration that ultimately led to his relativity theory. Danish physicist Niels Bohr tried to reconcile the ways that energy acted like both waves and particles: states that existed simultaneously, even though they could not be observed together. This train of thought ultimately inspired a startling new understanding of quantum mechanics.”

Can we arrive at a new synthesis on Ukraine and change our thinking to repudiate both American imperialism and Putin-style fascism? Sadly, the jury, as they say in my profession, is still very much out on the question.

In the meantime, we should at a minimum be able to agree that the bloodbath must end. As I put it in another comment on my thread:

“The building is on fire. We can talk about the corrupt builder[s] and the building code inspectors who didn’t do their jobs when it’s out. Translation: the Russian invasion is an atrocity and has to be stopped now.”

How the Supreme Court is  turning back the clock on election law — and advancing voter suppression

If I asked you to name the most important opinion handed down by the U.S. Supreme Court during Earl Warren’s sixteen-year tenure (1953-69) as Chief Justice, you’d probably cite Brown v. Board of Education, the landmark, unanimous ruling that ended legal segregation in public schools.

This article originally appeared on the Progressive.

Warren himself was asked this exact question in a televised interview with the McClatchy News Service that aired on June 25, 1969, two days after he formally stepped down from the bench. Without understating the importance of Brown, he singled out Baker v. Carr, the 1962 decision on reapportionment, redistricting, and gerrymandering that established the doctrine of “one person, one vote.”

As Warren explained:

“I think the reapportionment not only of state legislatures but of representative government in this country is perhaps the most important issue we’ve had before the Supreme Court.

“If everyone in this country has an opportunity to participate in his government on equal terms with everyone else, and can share in electing representatives who will be truly representative of the entire community and not some special interest, then most of the problems that we are confronted with would be solved through the political process rather than through the courts.”

Four years after deciding Baker, the court issued another pivotal decision in South Carolina v. Katzenbach, upholding the constitutionality of the Voting Rights Act of 1965.

Flash forward to the present day, and the Supreme Court has shifted on its axis. Now dominated by conservatives, including three hard-right members nominated by President Donald Trump, the court appears determined to turn back the clock on election law to the early 1950s and undo the last vestiges of Warren’s voting rights legacy.

The court’s latest act of electoral sabotage came in a 5-4 ruling, issued on February 7, that reinstated a new Alabama Congressional map created after the 2020 census for the state’s seven seats in the House of Representatives. Chief Justice John Roberts, the architect of much of the court’s recent voting rights carnage, was so disturbed by the majority’s decision that he joined the court’s three Democratic appointees in dissent.

In January, a three-judge federal district court panel overturned the Alabama map as an illegal “racial gerrymander” in violation of Section 2 of the Voting Rights Act. The section prohibits voting practices and procedures that discriminate on the basis of race, color, or membership in a minority language group. Private parties as well as the federal government can file civil lawsuits to enforce the act.

The new map was challenged by the Alabama chapter of the NAACP and other plaintiffs, who noted that while Black people comprise 27 percent of the state’s residents, the map concentrated one-third of Black residents into a single voting district. The net effect was to create one Black majority voting district while dispersing the rest of the Black population across the state.

In support of their suit, the plaintiffs cited a series of Supreme Court decisions on the Voting Rights Act from the 1980s and 1990s that struck down race-based gerrymanders which weaken the power of minority voters, either by “packing” minority populations into a few districts or by spreading them throughout the state, a practice called “cracking.”

The district court concluded that Alabama’s map, if fairly drawn, would either provide two districts with Black voting majorities or multiple districts “in which Black voters [would] otherwise have an opportunity to elect a representative of their choice.” The judges ordered the state to redraw the map.

At the state of Alabama’s request, the Supreme Court intervened with an emergency “shadow docket” ruling, issuing a stay of the district court’s decision without holding oral arguments or receiving a full briefing. As several academics and journalists have noted, the court’s shadow docket grew exponentially during the Trump presidency, and the trend is continuing.

As with many shadow docket matters, the court’s stay order on the Alabama map is technically temporary in nature, as the case will be taken up for full formal review next term. In the meantime, however, the map will remain in place, giving the state’s Republicans an undeserved advantage in the midterms.

While the court’s final ruling on the Alabama case remains pending, there is little reason to believe it will ultimately invalidate the rigged map. Although Chief Justice Roberts joined the court’s liberals at the shadow docket stage in opposing a stay, he could easily change course when the case is decided on the merits.

Roberts’s overall record on voting rights has been abysmal. He was the author of the 5-4 majority opinion in Shelby County v. Holder (2013), which gutted the Voting Rights Act’s “pre-clearance” provisions that required state and local jurisdictions with histories of discrimination to obtain advance federal approval before implementing changes in voting procedures.

Since then, voter suppression techniques in GOP-controlled states have proliferated at a rate not seen since the Jim Crow era.

In another crippling blow, Roberts wrote the majority opinion in Rucho v. Common Cause (2019), which held that partisan gerrymandering, no matter how extreme, presents a nonjusticiable “political question” beyond the jurisdiction of federal judges. He also joined his Republican soulmates last year in a pair of 6-3 decisions from Arizona that further weakened Section 2 of the Voting Rights Act.

Looking to Roberts to act as a savior on voting rights is a fool’s errand. As Linda Greenhouse wrote in a New York Times guest column on February 9, in reference to the Alabama map ruling, “You know the Rubicon has been crossed when the Supreme Court issues a conservative voting rights order so at odds with settled precedent and without any sense of the moment that Chief Justice John Roberts feels constrained to dissent.”

To appreciate just how far our highest court has fallen, you only need to replay Warren’s McClatchy interview. If Warren were alive today, he would likely be a vocal advocate for court reform. But, alas, his voting rights legacy is looking more and more like a mournful epitaph.

The question is no longer whether Trump’s MAGA movement is fascist — but can we defeat it?

The Republican Party’s embrace of fascism is now open and notorious, and impossible to ignore. With the exception of a few stragglers and diehards, the party has been captured by Donald Trump and the MAGA movement he has spawned.

And the takeover is accelerating.

In his latest “Save America Rally,” held in Montgomery County, Texas, on Jan. 29, the former president went beyond his usual tirades about the “big lie” of the stolen election and Mike Pence’s cowardice, ranting that he would consider pardoning the Capitol insurrectionists if he is reelected in 2024. “If I run and I win, we will treat those people from Jan. 6 fairly,” he declared. “And if it requires pardons, we will give them pardons, because they are being treated so unfairly.”

It has been reported that Trump secretly considered pardoning the insurrectionists before leaving office, but hesitated and ultimately took no action. Now, he’s saying the quiet part out loud. His rhetoric is becoming increasingly incendiary.

Implicit in the prospect of pardons is the endorsement of political violence and the promotion of alternative realities, both hallmarks of classic and, now Trumpian, fascism. Lest it be forgotten, four people died on the day of the insurrection. Another 150 officers from the Capitol Police, the Washington, D.C. Metropolitan Police and other agencies were injured. In the weeks after the attack, an additional five officers died, either from injuries sustained during the riot or because they committed suicide.

At his Texas rally, Trump also called on his supporters to stage massive demonstrations if he winds up getting indicted or sued as a result of investigations led by the Justice Department, Manhattan District Attorney Alvin Bragg, New York Attorney General Letitia James, and Fulton County, Georgia, District Attorney Fani Willis. Without mentioning James, Bragg or Willis--all of whom are Black--by name, Trump vowed, “If these radical, vicious, racist prosecutors do anything wrong or corrupt, we are going to have the biggest protests we have ever had.”

Following Trump’s remarks, Willis sent a letter to the FBI, asking for a “risk assessment” of the courthouse and government center where she works, and for security assistance.

The Republican National Committee, on the other hand, responded to Trump’s speech with abject genuflection. On February 4, the RNC voted to censure Representatives Liz Cheney of Wyoming and Adam Kinzinger of Illinois for serving on the House select committee investigating the insurrection. In its formal censure resolution, the RNC condemned the pair for “joining in a Democrat-led persecution of ordinary citizens who engaged in legitimate political discourse.” [The RNC later attempted to clarify that the resolution applied only to non-violent protesters.]

There are countless other examples of the GOP’s fascist transformation. To cite just a few, there was the party’s decision to pledge loyalty to Trump rather than adopt a new platform for the 2020 elections. There were the “coup memos” written by attorneys associated with the Trump campaign. There were the fake Electoral College certifications prepared by party operatives in several swing states. All occurred amid a constant drumbeat of white grievance and nationalism broadcast by Fox News and other right-wing media outlets.

The particulars and the details are important, but the bigger question is, where is Trumpian fascism headed?

The political scientist Robert Paxton, one of the world’s leading authorities on fascism, has identified five stages of fascism:

1. The initial creation of movements;

2. The rooting of the movements in a political system;

3. The acquisition of power;

4. The exercise of power; and

5. Radicalization or entropy, the stage at which movements reach their most extreme heights, or exhaust themselves and fizzle.

We are well beyond the first two phases. We flirted with the third and fourth during Trump’s first term, but our democratic institutions—weak and tattered as they are—were able to resist.

The election of Joe Biden offered only a temporary reprieve. Now, with Biden’s coalition fraying, the GOP and Trump have another opportunity to impose their will and vision, and deal a death blow to what remains of our diminished democracy.

As I have written before, fascism is a loaded term, but if used correctly, it aptly applies to Trumpism.

In his seminal study, “The Anatomy of Fascism” (Harvard University Press, 2004), Paxton offers an instructive definition:

“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 Italian 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.

As the current situation demonstrates, fascism is by no means 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 another working definition of fascism, noting that while fascist movements differ from nation to nation, they 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."

No one has summarized the perils of Trumpism more insightfully than the celebrated linguist and political commentator Noam Chomsky. In a June 2021 interview with Truthout, Chomsky remarked:

“The term 'neoliberal proto-fascism' captures well both the features of the current [Republican] party and the distinction from the fascism of the past. The commitment to the most brutal form of neoliberalism is apparent in the legislative record, crucially the subordination of the party to private capital, the inverse of classic fascism. But the fascist symptoms are there, including extreme racism, violence, worship of the leader (sent by God, according to former Secretary of State Mike Pompeo), immersion in a world of 'alternative facts' and a frenzy of irrationality. Also in other ways, such as the extraordinary efforts in Republican-run states to suppress teaching in schools that doesn’t conform to their white supremacist doctrines. Legislation is being enacted to ban instruction in 'critical race theory,' the new demon, replacing Communism and Islamic terror as the plague of the modern age. ‘Critical race theory’ is the scare-phrase used for the study of the systematic structural and cultural factors in the hideous 400-year history of slavery and enduring racist repression...

“What’s missing from 'proto-fascism' is the ideology: state control of the social order, including the business classes, and party control of the state with the maximal leader in charge. That could change. German industry and finance at first thought they could use the Nazis as their instrument in beating down labor and the left while remaining in charge. They learned otherwise.”

In another Truthout interview conducted last month on the anniversary of the insurrection, Chomsky added:

“Trump’s motives are clear enough. We don’t need a degree in advanced psychiatry to know that a sociopathic megalomaniac must always win; nothing else can be contemplated. Furthermore, he’s a canny politician who understands that his worshippers will easily accept the 'Big Lie.'

"Many have wondered at the willingness of two-thirds of Republicans to believe the ludicrous pretense that the election was stolen. Should we really be surprised? Have a look at the views of Republicans on other matters. For example, on whether humans were created as they are today: about half of Republicans. Or on whether Muslims are seeking to impose Sharia law on the U.S.: 60 percent of Republicans who trust Fox News. Or on a host of other pre-modern beliefs in which the U.S. (mostly Republicans) stands virtually alone among comparable societies.

“So why not a stolen election?

“Election subversion is not merely a threat. It’s happening in the 'soft coup' that is underway right now. As is the drift toward a form of fascism. There is evidence that general attitudes of Trump voters on a range of issues are similar to those of European voters for far-right parties with fascist origins. And these sectors are now a driving force in the GOP.

“There’s also substantial evidence that this drift to the far right may be driven in part by blind loyalty to Trump. That seems to be the case on the most critical issue that humans have ever faced: environmental destruction. During Trump’s years in office, Republican recognition of climate change as a 'serious issue,' already shockingly low, declined by 20 percent, even as nature has been issuing dramatic warnings, loud and clear, that we are racing toward disaster.

“The phenomenon is deeply disturbing, and not without grim precedent. A century ago, Germany was at the peak of Western civilization, producing great contributions to the sciences and the arts. The Weimar Republic was regarded by political scientists as a model democracy. A few years later, Germans were worshipping Der Führer and accepting the vilest lies, and acting on them.”

The future, thankfully, remains unwritten. Trumpism can be defeated, but not without recognizing it and calling it out as the fascist menace it is.

Are we up for the enormity of the task? I wonder.

This is still Trump’s Supreme Court

The Supreme Court’s conservative majority has developed a love/hate relationship with Donald Trump. Simply put, the majority loves the disgraced ex-President’s social and political agenda, but hates his inflated claims of executive authority and personal grievance.

The just-announced retirement of Justice Stephen Breyer will do nothing to alter this dynamic or change the court’s balance of power, no matter who succeeds Breyer.

Trump’s most recent personal setback before the high court came in the case of Trump v. Thompson, decided on January 19. By an 8-1 margin, with only Clarence Thomas dissenting, the court rejected Trump’s request to block the release of a trove of White House documents sought by the House select committee investigating the January 6 insurrection at the U.S. Capitol.

The committee, chaired by Representative Bennie Thompson, Democrat of Massachusetts, requested the documents from the National Archives (where they have been stored pursuant to the Presidential Records Act following Trump’s departure from the Oval Office). The documents concern Trump’s actions on January 6 and his possible role in the insurrection. They include such items as memos, emails, diaries, schedules, and visitor and call logs—all of which Trump has sought to keep secret.

Conservative lawyer George Conway, writing in The Washington Post, calls the court’s decision “a brutal and personally stinging loss for Trump. And the arguments his own lawyers advanced may have made the defeat worse.”

Trump’s attorneys argued that even though Trump is no longer President, he retains the right to invoke executive privilege to prevent the disclosure of documents created while he was in office. After losing in the Court of Appeals for the District of Columbia, the lawyers asked the Supreme Court to step in, undeterred by President Joe Biden’s decision as the incumbent President to waive the privilege for most of the documents at issue.

The Supreme Court rebuffed Trump’s claims without hearing oral arguments in an unsigned one-paragraph per curiam (“by the court”) order. Trump’s contentions were so weak that the court apparently saw no need for an extended discussion. Instead, it simply endorsed the conclusion of the Court of Appeals, which had held that Trump’s claims “would have failed even if he were the incumbent,” and that “his status as a former President necessarily made no difference to the court’s decision.”

Within hours of the Supreme Court’s ruling, the National Archives began turning over documents to the select committee. Although the committee has not yet released the files, Politico reported that they include a draft executive order that, if issued, would have directed the Defense Department to seize voting machines across the country because of “international and foreign interference in the November 3, 2020, election.” The order also called for the appointment of a special counsel to “oversee the operation.”

The Thompson ruling wasn’t the first time Trump’s hubris resulted in embarrassment before the nation’s highest tribunal. In 2020, he lost his claims of “absolute immunity” from state criminal investigations in Trump v. Vance. And last year, the court turned away the last of the Trump campaign’s challenges to the results of the presidential election.

Going forward, Thompson will make it much more difficult for anyone to obstruct the committee’s work with meritless defenses of executive privilege. Steve Bannon, Mark Meadows, Ivanka Trump, and their confederates and cohorts had best take heed.

But Trump’s loss by no means signals a general turnaround in the direction of the Supreme Court. The six conservatives who now control the court remain committed to the legal philosophy of “originalism,” as popularized by the late Justice Antonin Scalia. It asserts that the answers to contemporary questions about such matters as voting rights, gerrymandering, union organizing, the death penalty, and campaign finance are to be found solely in the supposed “original” meaning Founding Fathers intended when writing the Constitution in the late eighteenth century.

This court session promises more of the same. If anything, the court is likely to veer even more sharply to the right. Thus far, the panel has refused to block Texas’s draconian new abortion law, and has invalidated the Biden Administration’s COVID-19 “vaccination-or-testing” requirement for the employees of large corporations.

Before the court’s current term concludes, the conservative majority will hand down opinions that likely will overturn or gut Roe v. Wade (Dobbs v. Jackson Women’s Health Organization), weaken local and state gun-control measures (New York State Rifle & Pistol Association, Inc. v. Bruen), potentially cripple the Environmental Protection Act (West Virginia v. EPA), and do away with what remains of race-based affirmative action programs at colleges and universities (Students for Fair Admissions v. Harvard University and Students for Fair Admissions v. University of North Carolina).

Trump lost in Thompson, as he did in Vance and in the election conspiracy challenges filed on his behalf. But it is not because the Supreme Court has suddenly gone squishy liberal, but because his positions were so extreme no rational court could accept them.

Trump ran for office on the promise of remaking the Supreme Court and the lower federal bench. Sadly, he made good on that promise, placing three young and doctrinaire judicial activists on the court. Even allowing for the occasional blip like Thompson, the Supreme Court has delivered for Trump and will continue to do so—to poach one of his own catch phrases—“like never before.”

Ivanka Trump must be feeling the heat — will she turn on her father?

This story first appeared at BlumsLaw.

Ivanka Trump must be feeling the heat.

New York Attorney General Letitia James has subpoenaed Ivanka to testify and produce documents related to the Trump Organization's shady business practices. James has also subpoenaed Donald Trump Sr. and Donald Jr. Last October, Eric Trump had his deposition taken in the same probe, and reportedly invoked his 5th Amendment right to remain silent over 500 times.

The House select committee investigating the Jan. 6 attack on the Capitol is also interested in Ivanka. In a letter sent on Jan. 20, the committee asked Ivanka to sit for an interview to discuss the events of Jan. 6, and to share her knowledge of any "conversations [she] may have witnessed or participated in regarding the [former] President’s plan to obstruct or impede the counting of electoral votes."

The letter expressed particular interest in hearing from Ivanka on four overlapping subjects: (1) The ex-president's calls with Mike Pence. (2) Any statements made by the former president on Jan. 6 about the attack on the Capitol. (3) The ex-president's reasons for refusing to summon the National Guard and his delay in urging his supporters to end their siege on the Capitol. (4) And any light Ivanka might be able to shed on her father's activities and conduct in the days after Jan. 6, "including President Trump's state of mind during that period and whether the President took appropriate action regarding the continuing threats of violence."

None of this is good news for someone who wants to redeem her tarnished social image and regain her spot on the glitterati A-list.

Thus far, however, Ivanka has shown no interest in cooperating. She has refused to comply with the New York subpoenas, and publicly has shown no interest in meeting with the select committee.

Both James and the committee appear equally determined. James has asked a New York judge to compel Ivanka's compliance, and the committee has proven that it is willing to play hardball with anyone who snubs it. Just ask Steve Bannon and Mark Meadows.

This is not the first time speculation has arisen that Ivanka might turn against her father. Back in July, after the Manhattan district attorney charged the Trump Organization and its chief financial officer, Allen Weisselberg, with falsifying business records and other financial felonies, Mary Trump, the ex-president's niece, told the Daily Beast that Ivanka was far less likely to remain loyal to her father than Weisselberg.

"I think kind of in the grand scheme of things, as counterintuitive as this might sound...Ivanka has, one, more to lose and, two, more to hang onto. Her husband's family is legitimately very wealthy," Mary Trump said. "If there are two sets of books for Allen, there are two sets of books for other people. And I think we're also going to find that in these millions of pages of documents [that prosecutors have obtained] there will be more evidence."

Even before Mary Trump offered her take, I offered mine in a column I wrote for Salon and Raw Story in early December 2020, suggesting that ultimately the best course for Ivanka might be to cooperate with prosecutors in exchange for an immunity agreement to shield herself from personal legal liability.

Two weeks before I wrote the column, The New York Times had reported that James and the Manhattan DA were looking into the Trump Organization for alleged income-tax-avoidance schemes, including questionable deductions claimed for "consulting fees" paid to Ivanka and other individuals and businesses.

In September 2020, the Times published a mammoth expose of Donald Trump's financial dealings, revealing that between 2010 and 2018, the Trump Organization wrote off "$26 million in unexplained 'consulting fees'" as business expenses on its tax returns. The $26 million included $747,622 paid to an unidentified individual. That amount, it turned out, exactly matched income Ivanka listed as consulting fees on the 2017 financial disclosure forms she filed when she joined the White House staff.

There is nothing illegal about receiving compensation for consulting work, provided that services are actually rendered. But Ivanka's consulting services looked anything but routine.

In my column, I quoted comments made by former New York City prosecutor Elura Nanos and CNN legal analyst Elie Honig about the consulting fees. Nanos explained in an article written for the Law & Crime website that Ivanka was "an executive officer of 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."

Honig, who spent eight years working as an assistant U.S. prosecuting white-collar crime, described Ivanka's predicament even more bluntly in an on-air interview:

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 the news back then that she was being investigated 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.

The new round of subpoenas from James, combined with the select committee's letter, must make Ivanka wonder, to quote Yogi Berra, if "It's deja vu all over again."

I'm not predicting that Ivanka will suddenly see the light and turn "state's evidence" against her father and siblings as investigators pepper her staccato-style with questions. This isn't an episode of "Law and Order." It's real life.

But, then again, Ivanka's real life is about to get far more uncomfortable. In the end, she might just consider the joys and benefits of cooperation. The alternative is to hope for the best and follow Eric's lead of taking the 5th. And that certainly won't be a good look for someone seeking redemption.

Trump is haunted by the awful possibilities as the Jan. 6 investigation takes a critical turn

This story first appeared at BlumsLaw.

The seditious conspiracy indictment returned against the Oath Keepers is a game-changer for Attorney General Merrick Garland and the Justice Department. After months of dithering, Garland and the DOJ are finally showing they are prepared, as Garland promised in a public address earlier this month, to hold "all January 6th perpetrators, at any level, accountable under law."

The game, however, is far from over. To win it, the DOJ will have to accomplish two things: First, and most immediately, the department will have to prove its case against the Oath Keepers. Second, and even more critically, the DOJ will have to expand the scope of its prosecutions to include Donald Trump and his top aides and advisers.

Neither will be easy.

The Oath Keepers Case

The offense of seditious conspiracy is set forth in section 2384 of title 18 of the United States Code. The statute makes it a crime to "conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof." Conviction carries a penalty of up to 20 years in prison.

In keeping with the statute, the Oath Keepers indictment alleges the 11 defendants conspired to "oppose the lawful transfer of presidential power by force" in contravention of the 12th and 20th Amendments to the Constitution and the Electoral Count Act of 1887.

The indictment marks the first time federal charges related to the insurrection have been levied against Elmer Stewart Rhodes III, the leader of the Oath Keepers. Rhodes, who resides in Granbury, Texas, is a former Army paratrooper and a Yale Law School graduate who once served as an aide to Republican congressman Ron Paul. He founded the Oath Keepers in 2009.

Another member of the Oath Keepers, Edward Vallejo of Phoenix, Arizona, was also indicted for the first time. Nine other members had previously been charged in other indictments involving the insurrection.

Seditious conspiracies are rarely pursued because they are difficult to prove. To succeed, prosecutors must establish beyond a reasonable doubt that two or more individuals agreed to commit the target crime (overthrowing the government, hindering the execution of federal law, etc.), and that each voluntarily joined the conspiracy, knowing of its purpose and intending to advance its goals.

The proof difficulties are compounded in conspiracies that arguably involve expressive behavior implicating the First Amendment protections of free speech and association. As the Supreme Court held in Brandenburg v. Ohio (1969), speech advocating violence cannot be prohibited unless it is likely to incite "imminent" lawless action. Nor may mere membership in a subversive organization be criminalized.

Like treason, seditious conspiracy is a political crime. Progressives have historically--and for good reason--been wary of sedition prosecutions, fearing government overreach and suppression of legitimate dissent. In the summer and fall of 2020, Attorney General Bill Barr reportedly considered prosecuting Black Lives Matter protesters for sedition. Fortunately, Barr relented, likely because he doubted he could obtain convictions, not out of respect for the Constitution.

In 2012, a federal district court judge dismissed seditious conspiracy charges that had been brought against members of the "Hutaree," an apocalyptic Christian militia group based in Michigan. The Hutaree defendants had been accused of plotting to kill police officers in order to spark a larger revolt against the government.

Judge Victoria Roberts, who was appointed by President Bill Clinton and is still on the bench, dismissed the conspiracy charges after the prosecution had put on its case at trial. In her written decision, Roberts concluded that the government's case was "largely built on circumstantial evidence," and that the prosecution had failed to prove the defendants had a concrete agreement to forcibly oppose the federal government's authority. The judge also held that any menacing statements made by the defendants were general in nature and "while vile," were "protected by the First Amendment."

The DOJ also lost an earlier seditious conspiracy case in 1988 when an all-white jury acquitted 13 white supremacists drawn from the Ku Klux Klan and The Aryan Nations in a trial held in Fort Smith, Arkansas.

On the other side of the ledger, the DOJ won a high-profile seditious conspiracy prosecution in 1954 against four Puerto Rico independence activists who had stormed the Capitol, and shot and wounded five members of the House of Representatives.

In 1995, the DOJ prevailed in another seditious conspiracy case brought against Egyptian Cleric Sheikh Omar Abdel-Rahman, and nine followers, who were accused of plotting to blow up the United Nations, along with an FBI building, and two tunnels and a bridge connecting New York and New Jersey.

On its face, the case against the Oath Keepers more closely resembles the DOJ's successes more than its failures. The indictment totals 48 pages, and meticulously avoids targeting the defendants for their political beliefs or their speech.

In carefully drafted but moving prose, it sets forth a day-by-day, hour-by-hour timeline that began shortly after the presidential election, and lists a staggering 124 overt acts committed in furtherance of the conspiracy. The overt acts include dozens of encrypted text messages, as well as the defendants' coordinated travel across the country to Washington, D.C., the purchase of weapons, combat gear and communication equipment, and the formation of "quick reaction force" teams outside D.C. to bring firearms to the Capitol.

On January 6, according to the indictment [and as confirmed by video footage that has since aired repeatedly], the Oath Keepers entered the Capitol in two military-style "stack" formations, together with other rioters who rushed into the building, smashing windows, injuring dozens of police officers, sending lawmakers into hiding and halting the joint session of Congress.

The indictment does not allege Rhodes personally breached the Capitol, but asserts he entered the "restricted...grounds" outside the building, and sent tactical text messages to operatives inside, directing them to "link up" and later, "regroup."

The conspiracy continued through Inauguration Day on January 20th, when Rhodes sent out texts urging others to organize local militias to oppose the Biden administration, and declaring, "After this...if nothing happens...it's war...Civil War 2.0."

According to the New York Times, the case against the Oath Keepers has been bolstered by cooperation agreements reached with at least four Oath Keepers who were at the Capitol on January 6.

In addition to charging Rhodes and his co-defendants with seditious conspiracy, the indictment cites them under sections 1512(c) and (k) of title 18 of the United States Code for "obstruction of an official proceeding"--the joint session of Congress--and conspiracy to obstruct the joint session. Conviction of either offense carries a potential prison sentence of 20 years. One of the defendants is also charged with assaulting a District of Columbia Metropolitan Police officer.

Trump and His Lieutenants

Despite Garland's new-found resolve, the DOJ does not appear to be on the threshold of indicting Trump or his key aides and advisers. The Oath Keepers indictment, standing alone, does not implicate Trump in a federal offense. To the contrary, it contains a text message from Rhodes sent at 1:30 P.M. on January 6, stating, “All I see Trump doing is complaining. I see no intent by him to do anything. So the patriots are taking it into their own hands. They’ve had enough.”

If Garland and the DOJ eventually go after Trump and/or Rudy Giuliani, Steve Bannon, Roger Stone, Mark Meadows, Mo Brooks, John Eastman or any other close confederates of the ex-president, it probably will be for obstruction.

Unlike seditious conspiracy, obstruction does not require an intent to use force or violence. There is widespread public evidence that Trump and his top henchmen planned the ultimate act of obstruction in the form of a coup to keep Trump in office in defiance of the actual election results and the applicable law. Among other overt acts, they pressured state legislators and the Georgia secretary of state to overturn the election results, leaned hard on Vice President Mike Pence to refuse to certify Biden's victory, and incited a mob to march on the Capitol on January 6.

As further evidence of his conspiratorial intent, Trump allegedly waited 187 minutes before calling on his supporters to abandon the attack and go home. To this day, he persists in promoting the "big lie" that the election was stolen.

In the end, the biggest challenge Garland and the Justice Department may face in holding Trump and his minions accountable may not be deciding what charges to bring, but narrowing the breadth of any future indictment in light of the unprecedented magnitude of the crime. To win what would likely be the most important trial in our history, the DOJ will have to craft a narrative that is at once comprehensive, compelling and manageable.

As we wait for Garland's next move, one thing appears clear: Trump is living in fear of the awful possibilities.

BY BILL BLUM

For the latest and most incisive progressive and liberal commentary on the Constitution, the Supreme Court, and the all-important intersection of law and politics in the United States, follow Bill Blum on Twitter @BlumsLaw.

There are encouraging signs Trump may finally be headed for his day of legal reckoning

This story first appeared at BlumsLaw.

As we embark on a new year, we find ourselves asking the same old question about the disgraced 45th president of the United States: When—if ever--will Donald Trump be brought to justice?

As president, Trump weathered both the Mueller investigation and two impeachment trials. And to this day, he has yet to be charged with a single criminal offense, whether for his attempts to undermine the results of the 2020 election; his role in sparking the January 6, 2021, insurrection; or his sordid history in the private sector as a marketing con man and real-estate huckster.

Understandably, many Americans have become cynical about the prospects of holding Trump to account. Many fear that Trump has forever damaged what remains of our collective commitment to the rule of law.

But all is not lost. Amid the gloom, there are encouraging signs that Trump may finally be headed for a day of reckoning.

The House January 6 Select Committee is diligently investigating the origins of the insurrection, including Trump’s part in inciting the riot at the Capitol that delayed the certification of Joe Biden’s victory. Both Bennie Thompson (D-SC), the committee’s chairperson, and Liz Cheney (R-WY), the ranking Republican, have disclosed that Trump is under consideration for a criminal referral to the Justice Department.

At the same time, state-level investigations against Trump appear to be heating up in New York and Georgia.

While we endure the agonizing wait, investigators have a truly staggering array of potential charges to shift through and analyze. They include:

FEDERAL CRIMES

I. Offenses Related to the Insurrection and the Attempt to Halt or Delay the Certification of the 2020 Electoral College Vote Count.

Inciting an Insurrection, 18 U.S.C. § 2383, maximum penalty: ten years in prison.

Seditious Conspiracy, 18 U.S.C. § 2384, maximum penalty: twenty years in prison.

Conspiracy to Defraud the United States, 18 U.S.C. § 371, maximum penalty: five years in prison.

Obstructing an Official Proceeding, 18 U.S.C. § 1512, maximum penalty twenty years in prison.

II. Offenses Related to the Phone Call Pressuring Georgia Secretary of State Brad Raffensperger to “Find” Enough Votes to Overturn the State’s Election Results.

Depriving or Defrauding the Citizens of a State of a Fair and Impartially Conducted Election, 52 U.S.C. § 20511, maximum penalty: five years.

Conspiracy to Deprive the Citizens of a State of Rights Secured by the Constitution, 18 U.S.C. § 241, maximum penalty: ten years.

III. Offenses Related to the 2016 Election, the Hush-Money Payoffs to Stormy Daniels and Karen McDougal, and the 2017 “Reimbursements” to Michael Cohen.

Conspiracy to Defraud the United States, 18 U.S.C. § 371, maximum penalty: five years in prison.

Campaign Finance Law Violations, 52 U.S.C. § 30109, maximum penalty: five years in prison.

IV. Offenses Related to the Mueller Investigation, and the Attempts to Halt or Otherwise Derail the Investigation.

Obstruction of Justice, 18 U.S.C. §§ 1503, 1505, 1510, 1512, maximum penalty: ten years.

NEW YORK CRIMES

Offenses Related to Private Business Practices.

Falsifying Business Records, New York Penal Law, § 175.10, maximum penalty: four years in prison.

Tax Fraud, New York Tax Law, § 1806, maximum penalty: twenty-five years in prison.

Insurance Fraud, New York Penal Law, § 176.30, maximum penalty: twenty-five years in prison.

Conspiracy, New York Penal Law, § 105, maximum penalty: twenty-five years in prison.

Racketeering and Organized Criminal Activity, New York Penal Law § 460, maximum penalty: twenty-five years in prison.

GEORGIA CRIMES

Offenses Related to the Raffensperger Phone Call

Solicitation to Commit Election Fraud, Georgia Code § 21-2-64, maximum penalty: ten years in prison.

Tampering with a Voter’s Certificate, Georgia Code § 21-2-56, maximum penalty: ten years in prison.

There is no guarantee, of course, that any of this will lead to an actual arraignment.

While in office, Trump was shielded with temporary immunity from federal prosecution as a result of the Justice Department’s longstanding policy against indicting a sitting president. Although that immunity is gone, Trump would nonetheless be protected by the presumption of innocence, just like any other private citizen, were he to be prosecuted now. And it would represent a historic first for a former U.S. president to be charged with a crime. No prosecutor, state or federal, is going to roll the dice unless they are confident that they could prove Trump’s guilt beyond a reasonable doubt.

Ultimately, the final calls will be made by three prosecutors: Attorney General Merrick Garland on the federal level; Alvin Bragg Jr., the incoming Manhattan District Attorney in January; and Fani Willis, the Fulton County, GA, District Attorney.

Thus far in his tenure as the nation’s top law-enforcement officer, Garland has proven to be upright but overly cautious. Willis is viewed by some observers as being overburdened by an enormous caseload of ordinary prosecutions. Bragg is untested.

Whether any of the three prove to be up to the challenge, one thing is certain: It isn’t sufficient to prosecute the low-level rioters who stormed the Capitol. To restore the rule of law, the leaders of the insurrection must be charged and tried. This includes the ringleader of them all—Donald Trump.

In both New York and federal courts, the basic statute of limitations specifies that charges must be brought within five years of the commission of a felony. In Georgia, the general statute is four years.

The clock is ticking. There is no more time to waste.

The Supreme Court has been captured by the GOP — and it’s moving right at a dangerous pace

This story was first published at The Progressive.

Since John Roberts’s appointment as Chief Justice in 2005, the U.S. Supreme Court has handed down a spate of transformational ultra-right decisions on a dizzying array of subjects, including voting rights, gerrymandering, union organizing, the death penalty, qualified immunity for police, gun control, campaign finance, and most recently, abortion.

With their solid 6-3 majority, the court’s conservatives are emboldened to wreak even more Constitutional havoc in the future. They are armed with the power of judicial review, which permits them to overturn popular legislation and prior precedent decisions at will. And with only occasional lapses, they adhere to the doctrinaire legal philosophy of “originalism,” which asserts that the answers to contemporary questions are to be found by guessing what the Constitution’s language meant to its Framers and readers in the late eighteenth century.

Though the Democrats are partly responsible for allowing the court to be taken over by the right, this is not the time for recriminations. Liberals and progressives have little choice but to move forward with efforts to reclaim the court and bring it in line with the values and needs of a multicultural democracy in the twenty-first century.

The most efficient way to counter the current rightwing domination of the court is to expand the number of justices, placing more liberals and moderates on the bench. Even if there is little prospect of this happening any time soon, the idea of court expansion as a political remedy to rein in an unchecked judiciary is nothing new; it’s actually an old idea that has taken on new urgency.

The issue of court expansion is addressed in the 294-page draft final report of the Presidential Commission on the Supreme Court of the United States, which was released on December 7. Established by President Joe Biden in response to the rising public clamor for court reform, the commission consists of thirty-four Constitutional law experts—including both liberals and conservatives.

Unsurprisingly, given the scope of its charge and its composition, the commission failed to make any recommendations on court expansion, or on implementing any other major structural changes to the court. Nonetheless, the report contains a surprisingly readable account of the Supreme Court’s history and offers a useful summary of past efforts to alter the court’s size.

As the report notes, the court’s size isn’t set by the Constitution; it’s set by Congress, pursuant to Article III, section 1 of the Constitution.

The Judiciary Act of 1789 established a six-member court, consisting of one Chief Justice and five Associate Justices. Throughout the nineteenth century, Congress changed the court’s composition six times, expanding or contracting the court, as the report explains, “for both institutional and political reasons.”

In 1801, John Adams and the Federalists, with only weeks left in power, reduced the number of justices to five in response to the election of Thomas Jefferson, a Democratic Republican. The following year, the new Democratic Republican Congress reversed the move and restored the court to six members. In 1807, Congress expanded the panel to seven justices, and in 1837, the number was increased to nine.

Echoing some of today’s controversies, the report devotes considerable attention to the intense conflicts between President Andrew Jackson and Chief Justice John Marshall over the scope of the Supreme Court’s authority. In 1837, two years after Marshall’s death, the court was enlarged to nine justices in one of Jackson’s last acts before leaving office.

All told, during his eight years in office, Jackson appointed six Justices. Foremost among them was Roger Taney, who authored the majority opinion in the infamous Dred Scott case of 1857 that held Americans of African descent could never be citizens. The Dred Scott decision was one of the factors that precipitated the Civil War.

The report also addresses the rapid series of changes to the size of the court that occurred both during and immediately after the Civil War, as the number of Justices grew to ten in 1863, contracted to seven in 1866, and returned to nine in 1869.

The court has remained at nine members ever since, withstanding both President Franklin Delano Roosevelt’s “court-packing” plan of 1937 that was crafted to blunt the court’s initial opposition to the New Deal, and rightwing calls to restrict the court’s power in reaction to the civils rights movement of the 1950s and 1960s.

There is nothing sacrosanct, however, about the number nine.

In a Washington Post op-ed published on December 9, Harvard Law School Professor Laurence H. Tribe and retired federal district court judge Nancy Gertner, both of whom served on the Biden Commission, explained that they once opposed court expansion but came to change their views.

“We now believe that Congress must expand the size of the Supreme Court and do so as soon as possible,” Tribe and Gertner wrote. “We did not come to this conclusion lightly.”

Tribe and Gertner cite three basic reasons for their shift in position:

“[F]irst, the dubious legitimacy of the way some justices [referring to Neil Gorsuch and Amy Coney Barrett] were appointed; second, what Justice Sonia Sotomayor rightly called the ‘stench’ of politics hovering over this court’s deliberations about the most contentious issues; and third, the anti-democratic, anti-egalitarian direction of this court’s decisions about matters such as voting rights, gerrymandering, and the corrupting effects of dark money.”

“Those judicial decisions haven’t been just wrong; they put the court—and, more important, our entire system of government—on a one-way trip from a defective but still hopeful democracy toward a system in which the few corruptly govern the many, something between autocracy and oligarchy. Instead of serving as a guardrail against going over that cliff, our Supreme Court has become an all-too-willing accomplice in that disaster.”

In April, the Judiciary Act of 2021 was introduced in both houses of Congress. If enacted, it would expand the court to thirteen justices. The House version of the bill currently has forty-three co-sponsors, and their ranks can only be expected to grow as the court’s conservatives do more damage to what remains of our democracy.

We can do our part to support the legislation by making court expansion a central focus of our wider political discourse as well as a campaign issue in the 2022 midterms and again in 2024—or however long it takes to get the job done.

The assault on Roe will only accelerate the GOP’s longstanding crusade to turn back the clock on progress

The six hardcore Republican activists who masquerade as impartial arbiters of constitutional rights on the Supreme Court are poised to overturn Roe v Wade, the landmark 1973 case that established a federal constitutional right to abortion. Either that, or they will gut Roe to the point where it is rendered toothless.

Whatever the nuances of the final ruling, the net result will be the same: Women’s reproductive freedom will be set back half a century. And the assault on Roe and abortion rights will only accelerate the GOP’s longstanding and ongoing crusade to return American jurisprudence to 1920s or, even worse, to the kind of reactionary federalism endorsed by Plessy v. Ferguson in 1896.

The Supreme Court’s verdict on Roe will come in the case of Dobbs v. Mississippi, which deals with a 2018 Mississippi law that bans almost all abortions after 15 weeks of pregnancy, roughly two months earlier than the 24-week standard for fetal viability set by Roe. The statute recognizes no exceptions for rape or incest.

Mississippi has asked the court not only to uphold its law, but to overrule Roe explicitly and entirely. The oral argument in Dobbs took place on December 1.

Although it is often difficult to predict the outcome of Supreme Court cases from the tone and tenor of oral argument, the handwriting on the wall in this one is easy to read.

Don’t take my word for it. Read through the transcript of the argument yourself. It can be found by navigating to the Supreme Court’s website, or simply by clicking here.

Here’s a brief guide to help you along:

Chief Justice John Roberts

Key Question Asked: “Because viability, it seems to me, doesn't have anything to do with choice. But, if it really is an issue about choice, why is 15 weeks not enough time?”

Roberts is what passes on the current court as a swing voter. Seen by some as an “institutionalist” concerned about the tribunal’s legitimacy, he’s committed to moving the court to the right, but more gradually and incrementally than his Republican confederates prefer.

Thomas repeated his call to overturn Roe in a dissenting opinion he penned in 2020 in a case from Louisiana--Russo v. June Medical Services. “[T]hose decisions,” he wrote, referring to Roe, Casey and other rulings, “created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled.”

Thomas senses that with the arrival of Dobbs, his goal is finally in reach.

Samuel Alito

Key Question: “Does any judicial decision at that time [when the 14th Amendment was adopted in 1868] or shortly or immediately after 1868 recognize that abortion was a right, liberty, or immunity?”

Decoding Alito’s question takes a little background in constitutional law. In Roe, the Supreme Court held that abortion rights were grounded in a constitutional right to privacy, and that the due process clause of the 14th Amendment, ratified in 1868, extended those rights to the states.

Since his confirmation in 2006, Alito has voted to uphold every restrictive abortion statue that has come before the high court. He is a lock in Dobbs not only to uphold Mississippi’s law, but to strike down Roe altogether.

Neil Gorsuch

Key Question: “If this Court will reject the viability line, do you see any other intelligible principle that the Court could choose?”

Like Thomas and Alito, and in contrast to Roberts, Gorsuch isn’t interested in replacing the viability standard with something else that might theoretically preserve some semblance of a woman’s right to choose. He wants to remove federal protections for choice.

Gorsuch does not have a long track record on abortion, but he voted in 2020 to uphold Louisiana’s highly restrictive abortion law in the June Medical case.

Brett Kavanaugh

Key Question: “[W]hy … doesn't the history of this Court's practice … tell us that the right answer [to the question of the constitutionality of abortion] is actually a return to the position of neutrality.”

In a rambling series of comments and poorly worded queries, Kavanaugh suggested that overturning Roe and leaving the legality of abortion for the states to determine would place the court in a position of neutrality, and that such neutrality would be preferable to taking a position on a contentious and divisive issue.

Kavanaugh also suggested that overturning Roe would be in keeping with the court’s history of overruling prior opinions that were wrongly decided. As a prime example of this history, he cited Brown v. Board of Education, the seminal 1954 decision that overruled Plessy v. Ferguson.

Coming from a Supreme Court Justice, this is remarkably bad lawyering. Fundamental constitutional rights can never be left to the states. That’s what makes fundamental rights fundamental—they apply across the country. Far from following in the footsteps of Brown, Kavanaugh’s views would, in effect, usher in a return to Plessy, and allow some states to respect constitutional rights and others to disregard them.

Amy Coney Barrett

Key Question: “[B]oth Roe and Casey emphasize the burdens of parenting, and … forced parenting, forced motherhood, [and how that] would hinder women's access to the workplace and to equal opportunities … Why don't the safe haven laws take care of that problem?”

It’s hard to imagine any Justice topping Kavanaugh’s outrageous remarks, but Barrett succeeded, demonstrating a tone-deafness to the burdens of pregnancy, especially for poor women and victims of rape and incest.

But Barrett is a religious zealot, and reportedly a member of “People of Praise,” a small, tightly knit, patriarchal charismatic Christian sect based in South Bend, Indiana, that professes admiration for "the first Christians who were led by the Holy Spirit to form a community." According to the Washington Post, a People of Praise directory from 2010 listed her as a “handmaid,” a position of leadership for women in the group.

In a 2006 law school commencement speech at Notre Dame, Barrett urged graduates to become a "different kind of lawyer," who sees that a "legal career is but a means to an end, and… that end is building the kingdom of God… [I]f you can keep in mind that your fundamental purpose in life is not to be a lawyer, but to know, love, and serve God, you truly will be a different kind of lawyer."

Count on her to vote to overturn Roe in keeping with both her personal devotions.

Stephen Breyer

Key Question: “To overrule [Roe] under fire in the absence of the most compelling reason, to reexamine a watershed decision, would subvert the Court's legitimacy beyond any serious question.”

More than a question, Breyer’s remarks amounted to a plea to his colleagues not to take drastic action. Invoking Alexander Hamilton’s famous commentary from the Federalist Papers, he went on to remind them that the court has “no purse, no sword, and yet we have to have public support…[which] “comes primarily from people believing that we do our job.”

His plea, almost assuredly, left the court’s conservatives unmoved.

Elena Kagan

Key Question: “[T]o prevent people from thinking that this Court is a political institution that will go back and forth depending on what part of the public yells loudest and … prevent … people from thinking that the Court will go back and forth depending on changes to the Court's membership…there has to be a strong justification in a case like this [to overturn a 50 year-old precedent].”

Like Breyer, but without the reference to Hamilton, Kagan pleaded seemingly in vain to rescue Roe.

Sonia Sotomayor

Key Question: “Will this institution survive the stench that this [overturning Roe] creates in the public perception that the Constitution and its reading are just political acts?”

The most direct, courageous and down-to-earth of the court’s liberals, Sotomayor hit the jurisprudential nail on the head. If Roe is overruled, the public will perceive the court as just another political body.

If anything, she understated the odor that is already wafting from the court’s hallowed halls.

As reflected in recent opinion polling, the court’s public approval rating has plunged to record lows, creating the very crisis of legitimacy that many of the Justices spoke of with great angst during the Dobbs oral argument. That crisis has been driven by a series of rightwing rulings the court has handed down on a host of critical issues, ranging from voting rights and gerrymandering to union organizing, campaign finance, the Second Amendment, and, barring some kind of divine intervention, abortion.

By the end of June, in addition to its abortion ruling in Dobbs, the court is expected to hand down potentially game-changing opinions on environmental regulation, and the separation of church and state under the First Amendment’s Establishment Clause in a case from Maine that involves public funding or religious schools. The court is also slated to issue another pivotal ruling on gun control in a case from New York.

And there is no reason for the court’s conservatives to end their quest to transform the Constitution at the conclusion of the current term. The conservative legal movement is ascendant. It is a cancer that has metastasized throughout our law and legal institutions, and must be stopped before it is too late.

The end of Roe v. Wade could be just the beginning of the GOP's attack on legal abortion

This story was first published at The Progressive.

For supporters of abortion rights, the stakes could not be higher than they are this term at U.S. Supreme Court. With conservatives holding a 6-3 advantage on the bench, Roe v. Wade is on the chopping block.

Should Roe fall, abortion will lose its status as a federally protected Constitutional right. Even worse, abortion could become a crime, as it was in nearly every state before Roe was decided in 1973.

It's even possible—if Republicans capture the House, the Senate, and the presidency in 2024—that abortion could become a federal felony. Pregnant people, doctors, nurses, and other "aiders and abettors" could be prosecuted and go to jail for conduct that has been perfectly legal for the last four decades.

This is not hyperbolic.

The Supreme Court is considering three high-profile abortion cases this session that pose existential threats to Roe. Two of the cases—United States v. Texas and Whole Woman's Health v. Jackson—are from Texas and were argued on November 1. The other, Mississippi's Dobbs v. Jackson Women's Health Organization, is slated for oral arguments on December 1.

The Texas cases deal with a draconian abortion statute that took effect in September. The new law bans abortions once a fetal heartbeat can be detected, usually six weeks after fertilization. In a cynical twist designed to evade federal court review, the law empowers private individuals rather than the state to bring civil actions to enforce the ban.

After initially declining to hear the Texas cases, the Supreme Court agreed to review them on a limited procedural basis to determine whether federal judges have the legal authority to stop state court judges and private parties from enforcing the law. Though the Supreme Court is not expected to directly address the continued constitutionality of Roe, a victory for the state would leave the law in place and effectively overturn Roe in Texas. A victory for Texas would also encourage copycat legislation elsewhere.

Dobbs, by contrast, involves a direct substantive challenge to Roe. The case will test the Constitutionality of a Mississippi law enacted in 2018 that bans abortions after the fifteenth week of pregnancy, with exceptions for medical emergencies and severe fetal abnormalities. No exceptions are made for pregnancies resulting from rape and incest.

In a brief filed in July, Mississippi asked the court to jettison Roe. The state has been joined in that request by a slew of groups from the ultra-right that have filed amicus curiae ("friends of the court") briefs.

With Roe out of the way, anti-abortion laws will proliferate. According to the Guttmacher Institute, twenty-six states are likely to ban abortion if Roe is overruled. These include laws enacted before Roe that have never been removed from the books in Alabama, Arizona, Oklahoma, Arkansas, and other states; so-called "trigger" laws that will take effect automatically in Idaho, Kentucky, North Dakota, and elsewhere if Roe is invalidated; and state constitutional bans that will be activated and enforced in Alabama, Tennessee, and West Virginia.

The abortion bans will also likely spark criminal prosecutions under intense pressure from influential elements of the right-to-life movement. As Heather Lawless, co-founder of the Idaho-based Reliance Center, told National Public Radio last October following the confirmation of Amy Coney Barrett as Ruth Bader Ginsburg's replacement on the Supreme Court: "I don't think abortion should be legal, period. Because abortion at any stage is willfully taking a human life, and I don't think that should be legal—at all."

Though Lawless said she wouldn't want to see abortion patients prosecuted, she advocates holding doctors who perform abortions fully liable. Some anti-abortion hardliners are prepared to go even further.

Catherine Davis, the founder of the Restoration Project in Georgia, told NPR that she wouldn't rule out punishing patients for self-induced abortions. "If she decides to self-abort herself, then she's subjected to the same penalty as the doctor," Davis said, in an apparent reference to techniques such as the "morning-after pill."

Abortions, in her view, should be treated as murder and punished the same way, "up to and including capital punishment."

While Davis's position may be extreme even in right-to-life circles, the prospect of a cascade of post-Roe prosecutions has the criminal defense bar on high alert. Earlier this year, the National Association of Criminal Defense Lawyers (NACDL) released a comprehensive report warning that if Roe is rejected, state laws defining "personhood" to include the unborn "will expand the reach of criminal liability for serious offenses such as homicide, feticide, aggravated assault, and many other crimes."

Such laws, according to the report, already exist in Arkansas, Kentucky, Mississippi, Alabama, and South Carolina.

The report similarly cautions, in a reference to anyone who provides material assistance with abortions, that state and federal conspiracy laws could be used to subject "a wide range of individuals, beyond women seeking abortions and the doctors performing them, to criminal penalties."

Although most post-Roe abortion prosecutions would take place at the state level, some cases could be initiated by the U.S. Justice Department should Republicans regain the levers of federal power in 2024.

In 2003, with largely Republican sponsorship and support, Congress passed and President George W. Bush signed into law the Partial-Birth Abortion Ban Act, making it a federal felony for doctors to perform certain late-term abortions. The Supreme Court upheld the law as constitutional in 2007 in Gonzales v. Carhart by a vote of 5-4.

With Republicans back in control of government, it would only take a party-line vote to carve out an abortion exception to the filibuster rule in the Senate for the enactment of a federal statute criminalizing abortion nationwide.

The fallout from any of these developments would be devastating for all pregnant people, but particularly for people of color and the poor.

The first step in unleashing these dire consequences could be taken by the Supreme Court, which is now dominated by staunch anti-abortion conservatives. We'll know whether Roe will survive when the court releases the final decisions of its current term at the end of June 2022.

Editor's note: A previous version of this story incorrectly described the Guttmacher Institute.

The Supreme Court's fantasy world of 'originalism' is proving to be a failure

For better or worse, the nine unelected elite lawyers who hold lifetime tenure as Justices of the United States Supreme Court have the last word on the interpretation of the Constitution. They and they alone get to pass final judgment on fundamental issues that touch all of our lives.

It is critically important, therefore, that the methodologies the Justices use to decide constitutional questions meet certain standards, and that their rulings are not only consistent with the text and history of the Constitution, but also responsive to the evolving needs and values of ordinary Americans.

This is, to be fair, no easy task, but it should be doable.

Sadly, the Supreme Court under the leadership of Chief Justice John Roberts has failed the test. The failure stems in large part from the court's embrace of a doctrinaire legal philosophy known as "originalism."

Originalism has led the court to enter a legal fantasy world in which the answers to contemporary questions about such matters as voting rights and gerrymandering, union organizing, the death penalty, search and seizure, gun control, abortion and campaign finance are to be found solely in the meaning that the Constitution had for the Founding Fathers in the late 18th Century. For originalists, the meaning of the Constitution is forever fixed, and can only be altered by constitutional amendments.

Originalism, as a tool of judicial decision-making, has been around a long time. One of its earliest expressions came in the Dred Scott case of 1857, perhaps the most odious decision ever issued by the Supreme Court, which held that Black Americans of African descent could never be U.S. Citizens. Plessy v. Ferguson, the 1896 decision that upheld the constitutionality of racial segregation even after the ratification of the 13th, 14th and 15th Amendments, is another originalist landmark.

But as I have written before, originalism as an explicit judicial theory came into vogue in the early 1980s. Initially, as popularized by Reagan-era Attorney General Ed Meese and the late failed-Supreme Court nominee Robert Bork, the doctrine asserted that the most important terms and provisions that appear in the Constitution and the Bill of Rights, such as "freedom," "liberty," "due process," and "cruel and unusual punishments," should be understood according to the "original intent" of the Founding Fathers, rather than as broad concepts that acquire depth, content and more complete meaning over time in response to changing social conditions.

When critics noted that the framers of the Constitution were a diverse group and that their actual intentions were varied and often ambiguous, proponents of the doctrine refined their approach. The current version—call it "new originalism"—was popularized by the late Supreme Court Justice Scalia and has been enthusiastically embraced and promoted by all six Republican-appointed Justices sitting on the court today.

Instead of emphasizing original intent, new originalists focus on the "original public meaning" of Constitutional provisions, which, they contend, can be ascertained from the recorded debates of the founding era and from such sources as late eighteenth-century dictionaries.

All originalists—whether of the old or new iteration—believe that their approach limits the subjectivity of judges and acts as a restraint on judicial activism.

In fact, originalism does nothing of the sort. As Fordham University history professor Saul Cornell has noted:

[I]f one looks carefully at the murky methodology and dubious practices of new originalism, it is clear that its historical foundations are even shakier than that of old originalism. The new theory is little more than an intellectual shell game in which contemporary political preferences are shuffled around and made to appear part of the Constitution's original meaning.

Originalism was front and center during the oral arguments the court conducted earlier this term in a hotly contested appeal that could determine the future of gun control in the United States.

The case--New York State Pistol Association v. Corlett—is the first major Second Amendment challenge the court has entertained since it handed down a pair of decisions in 2008 (District of Columbia v. Heller) and 2010 (McDonald v. Chicago) that recognized an individual constitutional right to keep firearms in the home.

The new case was brought by two individuals and the state affiliate of the National Rifle Association to overturn a New York law that places limits on the issuance of concealed weapons permits to carry guns outside the home. 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 is unconstitutional.

During the oral arguments, the Justices paid too little attention to the dire consequences of unleashing more guns on the streets of present-day New York City. They instead peppered the attorneys for both sides with questions about the origins under Anglo-American law of the right to carry arms in public places. At several points in the two-hour session, the attorneys were asked to share their thoughts on whether the Statute of Northhampton, an act of the English Parliament passed in 1328, banned the carrying of weapons other than by the king's servants in fairs and markets.

The questioning would have made for an amusing Saturday Night Live or Monty Python skit, but this is real life. Commenting on the oral arguments, Professor Cornell told the BBC it was "beyond ironic" that anyone would look to Medieval England for resolution of the case. "It just doesn't make any sense whatsoever to anyone who really understands the complexity of English history. Obviously, that doesn't include many people in the gun rights community or many people sitting on some courts in America."

There is, of course, a better and more reality-centered way to adjudicate constitutional issues. Originalism's rival, known variously as "living or dynamic constitutionalism," asserts that while the text of the Constitution may be the starting point of any analysis, the meaning of the Constitution should evolve over time and accommodate contemporary values, social needs, and changing traditions.

Living constitutionalism has been embraced by the liberals on the Supreme Court today, and in recent times, occasionally by centrist Justices, such as Anthony Kennedy, who retired in 2018.

A good example of the doctrine can be found in Kennedy's majority opinion in Obergefell v Hodges (2015) which recognized a federal constitutional right to same-sex marriage.

Rejecting the originalist approach, Kennedy wrote:

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.

Unfortunately, with the Supreme Court now firmly in the hands of committed originalists and the fantasy world they inhabit, the living Constitution is on life support.

There was a method to the madness of the Trump coup memos

By now, it should be abundantly clear that the insurrection of January 6, 2021, was not a spontaneous uprising perpetrated by an angry horde of amped-up Trump supporters. To the contrary, the insurrection was the culmination of an attempted coup designed to prevent the peaceful transition of power.

But while the insurrection failed, a new coup is brewing and gathering steam. It is being spurred by Trump's relentless promotion of the "big lie" about the stolen election, and by means of massive voter suppression and voter subversion legislation enacted since the election in key Republican-dominated states to guarantee that the GOP regains control over Congress in 2022 and that Trump is restored to the presidency in 2024.

Any lingering doubts about the premeditated nature of the first Trump coup and the events of January 6 have been laid to rest by the public disclosure of two memos written on behalf of the Trump campaign by a conservative lawyer named John Eastman, a former dean of the Chapman University Law School in Orange County, California, who once served as a clerk to Supreme Court Justice Clarence Thomas.

Eastman was one of Trump's top legal advisers in the 2020 presidential race. He appeared at the now-infamous "Save America" rally on January 6 at the National Mall along with the disgraced former president, Rudy Giuliani, Republican Alabama Congressman Mo Brooks, and Donald Trump, Jr. Like the other rally speakers, Eastman delivered a fiery oration, denouncing the congressional certification of the Electoral College vote slated for later that day. Shortly after the rally, a mob of MAGA zealots marched from the mall and stormed the Capitol, as a stunned nation watched on live television.

Although Eastman has vigorously denied any connection between the speeches and the insurrection, his memos offered a blueprint for overturning the election results.

The first Eastman memo, a two-page document, outlined a six-point proposal aimed at pressuring Vice President Mike Pence to nullify the Electoral College votes in seven swing states, with a particular focus on Arizona. In the second memo, totaling six pages, Eastman identified the other targeted states as Georgia, Pennsylvania, Wisconsin, Michigan, Nevada and New Mexico.

Both memos were based on fundamental misinterpretations of the relevant law and the material facts. On the law, Eastman argued incorrectly that the 12th Amendment, ratified in 1804, gives the Vice President the authority to nullify the results of the Electoral College vote count when the results are disputed.

In fact, the 12th Amendment does no such thing, as Eastman himself asserted when he testified before a select committee of the Florida legislature in 2000. Back then, Republicans were concerned that Vice President Al Gore might nullify George W. Bush's victory in the Sunshine State. The role of the Vice President under the 12th Amendment in tabulating the votes of the Electoral College is ceremonial and mandatory. It is limited to announcing the results.

On the facts, Eastman argued that there were legitimate disputes about the election results in the seven swing states because the states had appointed dual slates of electors. In reality, none had appointed competing slates of electors. All had approved single delegations that had ratified Biden's victory.

Still, there was a certain method to the madness of Eastman's memos. If Pence lacked the authority or resolve to declare Trump the winner, Eastman offered a backup plan, also based on the 12th Amendment. The amendment stipulates that when no candidate wins a majority of the Electoral College votes, 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 an individual vote. Since Republicans would hold 27 House delegations in the newly convened 117th Congress, Eastman concluded Trump would emerge the winner after all.

According to a CNN poll released on September 12, 59% of Republicans still believe the big lie that the 2020 election was stolen. Knowing this, Trump and his acolytes, including many in rightwing media outlets such as Fox, One America and Newsmax, will continue to repeat and amplify the big lie. The goal is to undermine public confidence in future elections generally, and prepare the MAGA base to reject any important elections won by Democrats.

Encouraged by the big lie, Republican-controlled legislatures across the nation have enacted laws that will tilt future elections markedly in favor of the GOP. As of mid-July, according to the Brennan Center for Justice, at least 18 states had adopted laws that make "mail voting and early voting more difficult, impose harsher voter ID requirements, and make faulty voter purges more likely."

Even more troubling, a study compiled by the non-profit organization Protect Democracy has found that at least 16 states, including Texas, Florida, Arizona and Georgia, have enacted laws that shift administration and oversight of elections to Republican-controlled legislatures or highly partisan state election boards. If implemented fully, the new laws could be used to invalidate Democratic votes in the next presidential election, turning a Democratic victory into defeat, and reinstalling Trump to the Oval Office.

The Eastman memos, though a failure the first time around, provide a guide as to how the feat might be accomplished the second time at bat.

The gravity of the situation cannot be overstated. As Robert Kagan, a senior fellow at the Brookings Institute and a one-time advisor to John McCain, wrote in a Washington Post column published on September 23:

"The United States is heading into its greatest political and constitutional crisis since the Civil War, with a reasonable chance over the next three to four years of incidents of mass violence, a breakdown of federal authority, and the division of the country into warring red and blue enclaves. The warning signs may be obscured by the distractions of politics, the pandemic, the economy and global crises, and by wishful thinking and denial. But about these things there should be no doubt:
"First, Donald Trump will be the Republican candidate for president in 2024. The hope and expectation that he would fade in visibility and influence have been delusional. He enjoys mammoth leads in the polls; he is building a massive campaign war chest; and at this moment the Democratic ticket looks vulnerable. Barring health problems, he is running.
"Second, Trump and his Republican allies are actively preparing to ensure his victory by whatever means necessary. Trump's charges of fraud in the 2020 election are now primarily aimed at establishing the predicate to challenge future election results that do not go his way...
"Meanwhile, the amateurish "stop the steal" efforts of 2020 have given way to an organized nationwide campaign to ensure that Trump and his supporters will have the control over state and local election officials that they lacked in 2020."

The first step in thwarting the new Trump coup is to recognize that it is happening. The second is to summon the will and determination to stop it. At a minimum, we should demand that the Democrats end the Senate filibuster and pass the John Lewis Voting Rights Advancement Act.

Our democracy, with all its flaws and many shortcomings, hangs in the balance.

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.

Screen Shot 2021-08-02 at 10.58.19 AM.png

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."

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.

BRAND NEW STORIES