Our way of life is under attack — a warning that I have been shouting for some time now. While the former guy continues to push the Big Lie (in order to continue to profit off of the Big Grift), his impact on our country is more insidious and much more long lasting than just his attempts at overthrowing our government to keep himself in power. His biggest impact is the radicalization of the Supreme Court. Perhaps more correctly, Senator Mitch McConnell (R-KY) orchestrated a type of revolution when he pushed three Supreme Court nominees through the Senate while making up the rules as he went along — changing them to suit his purposes. He refused to consider President Obama’s nominee Merrick Garland because it was an election year, leaving the seat empty for almost a year. Then in 2017 he changed the filibuster rule to push Justice Neil Gorsuch through to confirmation. The nomination of Justice Brett Kavanaugh was equally rushed. Finally, Justice Amy Coney Barrett was confirmed by the Senate eight days before the 2020 election, after early voting had started in many states. So much for consistency, honesty or integrity.
Those three Justices have now joined with Justices Clarence Thomas (I should mention that his wife advocated for decertifying the election of President Biden and reinstating the former guy), and Samuel Alito, two ultra conservative Justices that have been waiting for the opportunity to undo decades of rulings. Five Justices now have a veto proof majority to decide cases for decades to come. Chief Justice John Roberts, a true conservative and not a Trumpist, has become something of a moderate vote, although in most cases he is expected to vote with the majority.
The result is a runaway court eager to execute a political agenda. Their most spectacular decision so far, of course, is to take away the Constitutional right to an abortion decided in Roe v Wade, the first time in our history that the Supreme Court took away a right. This decision will have far reaching repercussions throughout the land, many of which are yet to be understood. Many Americans are morally opposed to abortion but also believe that the government should stay out of imposing its will on women and girls’ health care decisions. Technically, the ruling did not ban abortions. It merely said that there was no Constitutional protection and it was left to the states to decide for themselves. In some states, the laws can be interpreted as preventing In Vitro Fertilization (IVF), “morning after” pills and some forms of contraception. Some states have no exceptions including the health of the woman, rape or incest. Where the health of the women is included as an exception, the wording is often vague making physicians and other health care providers reluctant, or down right refusing, to provide care for fear of prosecution. Some states are seriously considering making it a crime for a woman to go to another state for a legal abortion. Will there be pregnancy police? It is illegal in some states to gamble or solicit a prostitute, will they prosecute travelers to Nevada where such things are legal? A whole barrel of potential invasions of privacy in many aspects of our individual lives are just waiting to be unleashed by overzealous legislatures around the country.
But, wait! There’s more!
As I explained in my 5 May 2020 piece (The Minority Rules) the majority opinion overturning Roe essentially says that the Fourteenth Amendment “due process” and “equal protection” clauses do not apply to anything that was not mentioned in the original Constitution or that was unknown to the Congress and states when the Amendment was ratified. Let that sink in. Here we come 1868! All kinds of things were unknown in those days and the rights of women and minorities were nearly non-existent.
Although Justice Alito and other Justices tried to say that previous rulings using the Fourteenth Amendment, such as same sex marriage, unfettered access to contraceptives, marital privacy, mixed-race marriages, and a slew of other rulings, are not in jeopardy, several of them have voiced opposition to those rulings in the past or said that such decisions should be left to the states (more on that in a minute). More to the point, Justice Thomas in his concurring opinion expressly addressed those issues (except for some reason, mixed race marriages) as being wrongly decided. In essence, he was sending notice to the states that the Supreme Court would gladly re-adjudicate those issues if they are brought forward.
In this session the Court also weakened gun laws, narrowed the gap between church and state and crippled the federal government’s ability to regulate carbon emissions to fight climate change, among other things. Two guiding principles seem to be at work with this majority.
One is the “nondelegation doctrine.” This court used that theory to block vaccine mandates during the pandemic and now to prevent the Environmental Protection Agency (EPA) from regulating power plants. In essence, the theory holds that Congress cannot delegate policymaking authority to Executive Branch agencies. In other words, if the law does not specify the powers of a particular agency, then they are not allowed to put forth regulations or rules that govern a given activity. In the modern United States, science, technology, knowledge and innovation are advancing at ever increasing speeds. To keep up with modern advances, and unable to anticipate every development, Congress since the late 1930’s increasingly wrote laws governing federal agencies in broad terms, allowing them to operate in a particular regulatory area, precluding the need to constantly rewrite the laws. In one study, 99 percent of the laws passed since 1947 delegated some authority to a federal agency. If the nondelegation doctrine becomes the new norm for the Supreme Court, the federal government as we know it may be made impotent and unable to govern. Which, of course, is the goal of several far right conservative groups. Certainly, there will be many, many challenges to federal control.
The second aim of this Court seems to be to return as many things to the states as possible for them to legislate as they please. We see this with the abortion decision. Expect it to continue in many areas of what was once considered settled law. Where you live will dictate your rights. One might ask why have a federal government if the states will be able to do as they please? Good question. Apparently national defense and interstate commerce are the only areas of responsibility for the federal government.
Historically, “states rights” has been the cover for the Civil War, enslavement of human beings, Jim Crow laws, and preventing people from voting to name a few of the oppressive laws enacted over our history through the middle of the 20th Century. Let’s remember our history. After the Revolutionary War the colonies first banded together under the Articles of Confederation, giving great latitude to each. It did not work. With the Constitution and the creation of a federal government, we became a (mostly) united functioning country.
For me, all of the above not-with-standing, the scariest part is yet to come. The Supreme Court announced that next year they will hear Moore v Harper a case from North Carolina involving a gerrymandered voting districts map created by the state legislature that was overturned by the North Carolina state Supreme Court saying that it violated the state Constitution. The court ordered up a more fair map drawn by the court. This case involves yet another far right legal theory called “the independent state legislature theory.” Without getting too far into the legal weeds, the theory claims that the Election Clause of the Constitution says that state legislatures are the only groups with the right to decide on election rules unless Congress passes overriding legislation. In other words, an individual state could set up whatever rules it wants concerning federal and state elections and that state’s Supreme Court or governor have no say whatsoever as to how it will be done. The governor cannot veto such laws and the state Supreme Court cannot declare it as running counter to the state’s Constitution. The legislature can do whatever it wants regarding elections. Or so the theory states. Put that in the context of the 2020 election and the former guy’s attempts to overturn the election. Had states passed laws prior to the election giving themselves the sole power to choose the electors for the Electoral College they could have ignored the actual popular vote and sent a slate for whomever they want. I cannot predict what will happen when that case comes before the U.S. Supreme Court, and that’s the problem. Maybe they will make clear that state legislatures do not have that unfettered power, maybe they won’t. And that’s scary to me.
Prior to the Civil War, the correct grammatical statement was “the United States are…” After the Civil war it became “the United States is….” I fear we are moving backward in time.
The fall out from the leaked Supreme Court draft opinion overturning Roe v Wade published by Politico this week is getting a lot of richly deserved attention. While it is a February draft that is sure to change in some form or another, the basic tenets of the opinion will most likely remain — perhaps better refined, but still tendering the same basic argument. To date, much speculation centers on how the document was leaked. In a world where everything seems “unprecedented” this truly was. While Supreme Court decisions have been leaked before they were announced in the past, this is the first time in memory that an entire opinion was leaked. However, the why, who and when concerning the leak, although important in an institutional way for the integrity of the Court, is secondary to what is in the opinion.
I am not an attorney and I am not a Constitutional scholar, but it doesn’t take much more than an ability to read and to understand what is written to know that this opinion is a direct threat to way more than just the one case. Whatever one’s opinion on abortion may be, I recommend that you put aside those thoughts for a moment and think about what Justice Alito’s draft opinion means in a larger context.
For the the last year or two, my view is that the Supreme Court has, in a series of decisions large and small, been moving toward a very, very tight interpretation of our nation’s laws and Constitution. As this trend continues, it will move our country back at least one hundred years, and possibly back to life as it was under Reconstruction in the late 1800s.
For example, since the New Deal, and in keeping with rapidly developing complex technical developments, Congress increasingly gives authority to Executive Branch departments to regulate all manner of government and private enterprises. Recent district and appeals courts decisions have increasingly decreed that if a certain regulatory authority is not specifically written into the law, then that agency has no power to enforce it. For about one hundred years, we have assumed otherwise as long as it was reasonable and in keeping with the basic function of that agency. Chaos is likely to ensue should this trend continue as it would necessitate re-writing countless laws to specify powers that by the time the law is enacted are no longer relevant as technology and society move on.
The second trend that appears to be growing in numbers and reinforced by the Supreme Court is giving priority to the states over the federal government. Reconstruction, here we come. The 13th, 14th, and 15th Amendments were focused attempts to abolish slavery and to provide the same rights to formerly enslaved individuals as to those that enslaved them. The 14th Amendment, ratified in 1868 (a date which we will come back to shortly) in particular is relevant to this discussion. Section One of the amendment includes the Due Process and Equal Protection Clauses. Basically, the Due Process Clause extends the rights under the Bill of Rights to the states. The Equal Protection Clause says that every state must extend the protections of the law to every group equally. These clauses have been the basis for decisions such as Loving v Virginia which overturned laws prohibiting mixed race marriages allowing those marriages to be recognized in every state; Obergefell v Hodges which makes same sex marriages valid in every state of the Union, and of course, Roe v Wade, a right to abortion and the case now in question. Also relevant to this discussion is Griswold v Connecticut which hinged on marital privacy and the right to use contraceptives. The fact that the word “privacy” does not appear in the Constitution was a subject of debate in that case and is relevant in the Roe v Wade case as well.
From the last paragraph note that “abortion” “marriage” “privacy” “contraceptives” and many more modern activities and life style choices that we assume to be common in the course of everyday life are nowhere to be found in the Constitution. This is why Section One of the 14th Amendment is the source of arguments for and against many cases that reached the Supreme Court in the last 60 years or so.
This draft opinion is so upsetting to many Americans, beyond the impact of turning abortion laws over to the states, because it threatens other aspects of life that were considered settled. What other rights might states take away? It is not hyperbole. It is not hysteria. Several Republican members of the Senate raised similar questions as to why rights could not be “undone” during the hearings to confirm Judge Ketanji Brown Jackson to the Supreme Court. If the Equal Protection and Due Process Clauses were the basis for these decisions, and Justice Alito argues that they should not apply, then what is to stop states from taking away the rights of numerous groups based on marital status, race, gender identity or any other factor?
Do not be sanguine if you support a women’s right to choose that half of the states in our country still allow abortions. The Congress could pass a law institutionalizing the right to an abortion. Many Democrats have declared that they will work to pass just such a law before the mid-term elections. It will not happen. There are not enough votes in the Senate to break a filibuster and the Democrats will not or cannot overcome that rule. I guarantee, however, that if in 2024 the Republicans control the Congress and the White House that they will pass a law that does away with abortion in all fifty states — and they will ignore the filibuster if needed.
Several things jump out to me, a lay man, in the Justice Alito draft opinion. Most glaring perhaps, is that he says that a right decided nearly fifty years ago should be taken away. This is the first time that this has happened in our history. Justice Alito argues that the Supreme Court has changed their opinions several times throughout history. In particular, he mentions the 1896 Plessy v Ferguson case that established in law the “separate but equal” doctrine that institutionalized racism in our country. That ruling was overturned in the 1954 Brown v Board of Education of Topeka. Please note that the Brown ruling gave equal rights to a group of Americans. It did not take away a right.
If you happen to read the draft opinion (the link is in the first sentence above) you will notice a disturbing tone in his writings. I will not dwell on that, but he essentially calls his predecessors on the court morons and says that their decision, upheld in other cases since the original 1973 ruling, is “egregiously wrong.”
Digging deeper into his draft opinion, he seems to claim that the 14th Amendment only applies to things known in the year that it was ratified — 1868. Anything after that such as abortion, same-sex marriage, and countless other elements of modern life should not be included because they were unknown or unaddressed in that time. He says that “a fundamental right must be ‘objectively, deeply rooted in this Nation’s history and tradition.'” One could argue that racism, misogyny and bigotry are “deeply rooted” in our history, although the Justice may disagree. He goes on to argue that what people want (he uses liberty as an example) is not the same as what the 14th Amendment protects. Therefore, he continues, the Court should be “reluctant” to “recognize rights that are not in the Constitution.” And there we are. Apparently, we should live and act like it is the 1700s or 1800s.
Keep in mind that the majority of Americans favor no changes to Roe v Wade. Polls vary, but all show a majority favors keeping the government out of what may be the most personal of decisions. Remember also that many of the recent state laws make no exceptions for rape, incest or the health of the mother. When that is factored into polling, 80% or more of Americans are opposed to such restrictions. It seems like a single opinion is overwhelming what the majority of Americans want. Justice Alito addresses that fact by saying, in essence, “too bad.” He is not swayed by public opinion.
When this interpretation is tied to increasingly favoring states rights over the federal government, we are living in very regressive times. One would think that such an issue was solved with the Civil War, but apparently, I was wrong. We can already see in states like Texas and Florida what an over zealous legislature subservient to an autocratic governor can do to undermine the rights of those citizens.
In my mind, it gets worse.
The fallout from the Supreme Court rulings comes in the context of an ex-president that is still raising money and holding the party formerly known as the Republican Party hostage. There are very few traditional Republicans left that have not fallen into the MAGA Party. In way too many local, state and Congressional primaries, to win an election one must agree with the Big Lie and vow to overturn any election that a Republican does not win. That is where many, many states are headed. If your guy or gal does not win, then it could only be because the election was rigged, and the results should be overturned. I guess in many states, only Republican candidates are allowed to win elections.
In addition, looking at the Supreme Court which many would hope would be a bastion of defense against such un-American activities, we see a tendency to follow political beliefs rather than the rule of law.
Apparently here too, only Republicans can name Supreme Court Justices. Remember that the Majority Leader Mitch McConnell packed the Court with his nominees (I say his because the then president did not care about the Court, only that he got credit from his base). He blocked the nomination of Merrick Garland for nearly a year because of an upcoming election. Then, after voting for a presidential race had begun, he crammed Amy Coney Barrett through the Senate. Even as the president that nominally nominated them lost the popular vote twice. (Fun fact: A Republican presidential nominee has only won the popular vote once in the last 30 years.) To pour salt on the wounds, when asked recently whether any future Supreme Court nominees would go forward under President Biden’s last two years in office should the Republicans regain the Senate in 2022, Leader McConnell demurred, implying that it was unlikely. So, it is amazing that Judge Jackson’s nomination process went forward because it seems that only Republicans are supposed to be able to nominate Justices.
It is enough to make me wonder if our Republic can survive much past 2024.
Few people truly believed that Roe v Wade would actually be overturned. Primarily because in our history, rights had only be restored, never rescinded. Even Republican Senators such as Susan Collins and Lisa Murkowski did not think that it would be overturned as they were personally assured — assured — in public and in private by nominees Gorsuch, Kavanaugh and Barrett that it was “settled law” or “stare decisis” meaning that the precedent had been set and there was no reason to change it. So, both Senators came as close to calling those Justices “liars” as is possible to do in polite company.
As has been noted, this is a draft opinion for the majority of the Justices. It could change. Some speculate that it was leaked in order to force a change — others argue it was leaked to solidify the vote of a wavering Justice currently in the majority who might change his/her vote. Time will tell. The final decision should be handed down in late June or early July.
My advice to all Americans that do not agree with this course of events is to do something about it. Demonstrating in the streets is great, it makes people aware and allows for a release of emotion. Unfortunately the only thing that will change things is to vote. Organize, get out the vote, and cast a ballot. Otherwise, the crazies will take over.
“If I was going to do a coup, one of the last people I would want to do it with is General Mark Milley.”
— Donald J. Trump in a 15 July 2021 statement.
It is nice to know that the ex-president would not use the current Chairman of the Joint Chiefs of Staff (CJCS) to lead a coup, but his statement above begs the question as to who his first choice might be.
The pronouncement is a reaction to an excerpt from the book I Alone Can Fix It by Pulitzer Prize winning journalists Carol Leonnig and Philip Rucker of the Washington Post. In the book, General Milley is reported to have been deeply concerned that the ex-president would attempt a coup after he lost the election. The CJCS spoke of the ex-president following the “gospel of the Fuhrer” and creating a possible “Reichstag moment” in the wake of the ex-president’s Big Lie about the election. (Regular readers of this blog will recall that my 11 December 2020 post expressed the same concerns. Although I did not know of the CJCS worries at that time, it was obviously a wide-spread fear.)
I must say that in the days since the 6 January insurrection, my apprehensions about the future of our democracy have only grown deeper. I think that we are in a real crisis.
It is easy for me to ignore the incoherent rantings of a demented ex-president who spends his time scamming his followers and relieving them of their hard earned dollars. What I cannot ignore is the concerted, coordinated effort of elected Republican leaders at all levels of government to continue to push the Big Lie, spread concern over the safety of the Coronavirus vaccine, and work to divide our country for their own personal ego, power and monetary gain.
Our democracy was attacked on 6 January 2021 with the aim of overthrowing an election and extending the reign of a budding autocrat in a clear violation of our Constitution. As the criminal investigation continues, it is ever more clear that the goal of the majority of the rioters that entered the Capitol building was to prevent the certification of Joe Biden as the 46th President of the United States. Without the protection of the Capitol Police and Metropolitan Police (DC), sprinkled with a heavy dose of luck, law makers would have been severely injured or killed, and, in my view, the loser candidate would have invoked the Insurrection Act and sent the active duty military into the streets. That was certainly General Milley’s concern and he had a front row seat to the inner workings of the administration.
If there is any doubt about that, consider another passage of I Alone Can Fix It where the authors report that the ex-president’s only regret is that he did not send troops into American cities during the Black Lives Matter demonstrations last summer. Not the National Guard. Active duty military forces. He was willing to use the American military against American citizens in order to silence their protests because he feared he looked weak. His only regret. Not the hundreds of thousands of people that died from the mishandling of the pandemic, not the refusal of people to take the vaccine because they think it is some kind of badge of loyalty to him, not the insurrection he fomented to bring down our democracy. Only that he did not use American military might in the streets of American cities.
Now Republicans of various stripes (perhaps down the middle of their backs?) are working hard to change the narrative surrounding the insurrection. In typical Orwellian fashion, Senate Republicans blocked a bipartisan commission to investigate the events surrounding 6 January which included everything the Republicans wanted — including a co-equal chairmanship, bipartisan agreement on subpoenas, and on, and on. As a result, the Speaker of the House moved forward with a House Select Committee to investigate. Immediately came the howls of “partisanship” “politics” and other accusations that would be laughable if not so serious. They blocked a bipartisan effort! But now it is partisan. Minority Leader Kevin McCarthy (Tr-CA) appointed five members to the Committee, of which two were clearly installed to disrupt and distract from the serious proceeding. When the Speaker took the highly unusual step of blocking those two individuals, Mr. McCarthy withdrew all of his nominees. He now intends to have his own, Republican only, inquiry into the insurrection. The intent of that move will be to create a circus to divert attention from what really happened. The current Republican mantra is that Speaker Nancy Pelosi (D-CA) is the real cause of the attack. (Remember, logic and fact-based reality no longer apply to anything 90% of Republican officials say these days, which I find subversive and un-American because they know better. Mr. McCarthy thinks that he will be Speaker of the House after the 2022 elections and he will do anything to achieve that goal. God Bless America if he becomes Speaker because we will certainly need it.)
While Mr. McCarthy’s investigative committee will be partisan, at least two Republicans will be on the official Select Committee. Representative Liz Cheney (R-WY) was on the original appointee list (Speaker Pelosi gave her one of the Democrat’s slots) and today we learned that the Speaker appointed Representative Adam Kinzinger (R-ILL) to the committee. It will be bi-partisan. Politically, there is little to nothing that I agree on with those two Representatives, but I admire their courage and willingness to put the Constitution and our country above raw politics.
While I am 100 percent in favor of the Select Committee doing a thorough investigation, I have little hope that they will be able to accomplish all that we might expect had the original bi-partisan commission been able to do its work. I deeply suspect that members of Congress and/or their staff members were involved to varying degrees in the events of that day. Although the committee will have subpoena power, a lesson learned from the previous administration is that individuals can ignore Congressional subpoenas with impunity. The Congress has no real method to force people to testify other than by going to the courts. In recent years, we learned that even if individuals eventually get ordered by the courts to testify, it could be two or three years of court fights before they are so ordered. Even then there is nothing to compel them to talk. We may even find that the Biden Department of Justice protects some of the high ranking officials of the previous administration because they do not want to set a precedent of undermining Executive Privilege. I believe that our country needs to fully understand what happened and hold those responsible accountable. In the current political climate, we may never fully know who did what.
Meanwhile, the Big Lie continues to spread. There may be no bigger threat to our democracy. The 2020 election was the safest, most secure in our nation’s history. Yet, millions of people think that the election was “stolen” and that President Biden is not the legitimate leader of our country. Once people lose faith in the election process, and thus think that any election that does not turn out as they would like is fraudulent, they will take action as they did in January to “restore” what they think was stolen.
In another Orwellian twist, the only way to change the proliferating election laws resulting from the Big Lie is to vote out those people that are implementing them, but the laws are designed to keep them in power. There will be challenges in the courts, but meanwhile elections continue under the new laws. Even should voters succeed in dumping the old gang, the laws are written such that legislatures or other partisan officials can overturn the will of the people if they decide they don’t like the results. So first they are trying to suppress the vote to stay in charge, but should that fail, measures are in place to overturn the elections.
These are turbulent times. What is happening is not “politics as usual.” It doesn’t have anything to do with politics. It is a direct assault on our way of governing. Most people are not really paying attention to what is going on around our country with changes to election laws, fake audits of the 2020 election, and active measures to undermine the vote. Misinformation, disinformation and pure unadulterated lies are being used to curtail our right to vote and to end the peaceful transfer of power.
Perhaps the assault on the Capitol was more like the 1923 Beer Hall Putsch than the 1933 Reichstag Fire. We must remain ever vigilant to keep history from repeating itself.
As you may know, next week the Republicans in the House of Representatives plan to vote Congresswoman Elizabeth Lynne “Liz” Cheney (WY) out of her leadership position as the chair of the House Republican Conference, the number three position in their leadership. They will do so not because of immoral, illegal, or unethical behavior. It will not be done because she is a radical espousing policies and ideas that are antithetical to her party. She voted in support of the former guy’s policies 91% of the time according to the conservative group Heritage Action. They will not remove her for any logical reason. They will unseat her for one reason and one reason only. She will not lie. She will not lie about a disgraced ex-president winning the election. She will not lie about the election being rigged. She will not lie about the insurrection that attempted to overthrow our election actually being a bunch of friendly citizens visiting the Capitol on 6 January. She will not lie and say that the Black Lives Matter demonstrations last summer were the same as the white supremacist, militia led attack on the Capitol that intended to bring down the government.
There is little to nothing about Representative Cheney’s views and policies with which I agree. However, she should be a lesson to us all in putting country, honor and the Constitution above personal gain.
In one sense why should the average American care about the “inside baseball” workings of the Republican Party in Washington DC? Most people would understandably say that they could care less. However, in the context of one of my favorite sayings, that there is a difference between what things are and what things mean, it has real significance. What this is, is a power squabble within the ranks of one political party. What it means is that the Republican Party no longer cares about the truth, facts or rationality. It means that to be a member in good standing in the Republican Party one must embrace a lie and repudiate the Constitution. It means that they are willing to subvert democracy in order to make money and to attain power. By any means necessary.
The ouster of Representative Cheney is more than a gesture to appease the ex-president. Countless Republican politicians have and continue to pay homage to the open mic host at Mar-a-Lago. What this impending action signifies is the total repudiation of democracy. When this action is coupled with numerous Republican controlled legislatures working overtime to make it harder to vote, combined with activities like the ongoing circus in Arizona where they sublet the attempt to manufacture fraud where none exists, it becomes more and more evident that Republicans are willing to do anything to overturn an election when they don’t like the results.
This is a direct assault on democracy. Most troubling is that many of the voting laws enacted or under consideration in several state legislatures give the power to monitor, certify, and declare the winner of elections to themselves. They removed the practical power or provided the means to override the state offices responsible for free and fair elections — positions held mostly by Republicans in key states in 2020 — that did not go along with the Big Lie. In addition, should the Republicans have control of the House following the elections in 2024, they will have the means to accomplish what they tried to do this past election — overturn the will of the people and install their preferred candidate as president. It was close in 2021 — 147 Republicans voted to overturn the election, even after the assault on the Capitol — they know how to do it. As I explained in previous posts, the final arbiter of a contested election, even if the Senate does not agree, is the House of Representatives. So long USA.
Democracy most often does not fail via a violent revolution. It can slip away quietly as a result of small, but continuous changes over time until one day it is a democracy in name only. Polls show that 30% of Americans favor a “strong man as leader” and they don’t mean a weight lifter.
The Big Lie encourages domestic terrorism. Despite the revisionist history Republicans are now trying to peddle, people died at the Capitol on 6 January and hundreds were injured, some permanently. The Republicans are now trying to change that narrative, including saying that Donald J. Trump tried to tell the “boisterous” crowd that afternoon to go home peacefully. Maybe. It seemed too little too late for me, and even a bit tongue in cheek. That day he also called the rioters trying to kill the Vice President and Speaker of the House and others “patriots.” He went on to say “We love you. You’re very special.” Don’t forget that he basically told the country and our elected officials that they deserved what they got. More specifically he tweeted “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from the great patriots who have been badly & unfairly treated for so long.” He later added, “Remember this day forever!”
He has never condemned the attack. He never conceded the election. For the first time in our American history, there was no smooth and peaceful transition of power from one president to the next. I worry that the domestic terrorists that ransacked the Capitol, tried to kidnap a state governor, invaded numerous state capitols and undertook other acts of violence in the past year will do even more traitorous deeds if they continue to be aided and abetted by a major political party. Apparently, as long as they get their money and their votes, most Republican politicians are okay with white supremacy as a major force in their ranks.
This is what Representative Cheney is supposed to support in order to remain a member in good standing of one of the two parties in our democracy.
All of us can have different ideas about how to solve our nation’s problems with immigration, infrastructure, the economy or a host of other issues. There can be legitimate differences of opinion on policy. One party is trying to solve these problems, the other is laser focused on “owning the libs” and sabotaging our democracy by supporting a wannabe autocrat at all costs. To be honest, I am not sure why they want power because they don’t do anything when they have it. They have become the Do Nothing Party with one objective — block anything that President Biden proposes. (Just this week Senate Minority Leader Mitch McConnell said, “One hundred percent of my focus is standing up to this administration.” He went on to say that the Republicans are in “total unity” “in opposition” to the Biden Administration. Bi-partisan, eh?) I will be curious to see if they continue the blind support of Trumpism after Mr. Trump is indicted by a grand jury.
These developments are a clear and present danger to our Republic. It is up to all of us to see what it is happening and to call it out for what it is.
As we well know now, the Impeachment Trial for Donald J. Trump ended on Saturday with 57 votes to convict and 43 votes to acquit. Since 67 votes (a two-thirds majority) were required to convict him, Trump is not held accountable for his actions in fomenting an insurrection culminating in an attack on the Capitol building on 6 January, 2021. A shameful day for our country.
My schedule in these days of a pandemic was such that I could watch or at least listen to most of the proceedings. I am not an attorney, but I learned a lot about various interpretations of the Constitution and about legal concepts. Foremost in my education was understanding the term “but for.” In this case, it was clear that but for Trump, there would have been no Big Lie, no campaign to overturn a free and fair election, and no attack on the Capitol. Take Trump out of the equation — say he did not exist or more realistically, was not president or a candidate for president — and there is no attack. Period. It is unimaginable that any other presidential candidate would have provoked the same attempted coup that Trump undertook. Today, I am not so sure that it couldn’t happen again in the future. A smarter, more knowledgeable future losing candidate might be able to pull it off, especially if that candidate is aided and abetted by key election officials and members of the House and Senate.
Most disappointing during the week were the spineless votes cast on the single Article of Impeachment. Of the 43 Republicans that voted “not guilty” I would say that some — those in the Sedition Caucus — would have voted for Trump regardless of anything that he did. They voted to acquit not from fear, not from an appreciation of his policies, but rather for pure personal power reasons. Their sworn oaths of office are just words to them, not a solemn promise that protects our country. I would put six or seven of the Republican Senators in this category. The others mostly voted to acquit, in my opinion, out of fear. Some out of political fear that they might lose their job, some out of personal fear given the nature of the domestic terrorist threat that saturates Trump’s supporters, and some out of fear that their colleagues might criticize them. Some could possibly be found in all of those camps. What was galling was that immediately after the vote, many of the “not guilty” crowd came to the Senate floor to give speeches that point to the fact that they did think that Trump was the inciter-in-chief, but they let him off on a technicality. Pick your copout — as there were several — but the most common was that a former official could not be tried by the Senate. Once out of office, impeachment does not apply.
There are several things wrong with that approach. Foremost, of course, is that Trump was impeached while in office. When the House tried to convey the Article of Impeachment to the Senate, then Majority Leader Mitch McConnell adjourned the Senate so that the Article could not be delivered. It was out of session until the Inauguration. Remember that, because it will come up again. If it is possible for common sense to be a factor, it is logical that a president or other official subject to impeachment under the Constitution cannot commit a “high crime and misdemeanor” and then resign and get out of a conviction. Indeed, there are precedents in our own history where people were tried by the Senate after they left office.
As I understand it from my Constitutional Law 101 course watching the proceedings, the Founding Fathers left the rules and procedures for impeachment and subsequent trial rather vague. In this case, well over 100 Constitutional scholars of all political stripes opined that the Senate sets its own rules for the trial and that most certainly a president can be tried after he leaves office for offenses that took place while in office. Prior to the actual trial, this issue came up. In a bipartisan vote, the Senate voted 56-44 that it was Constitutional to hold the trial. That should have settled the matter and the presumption moving forward should be that the Constitutionality of the trial is not a factor when rendering a verdict. But then, in this day and age, and especially in Trump World, rules do not seem to matter.
The shamelessness of the 43 can best be epitomized by the speech that Senator McConnell gave immediately after the vote. He hung his “not guilty” vote on his claim that the trial was un-Constitutional. He did so by claiming that the House did not deliver the Article of Impeachment in a timely manner. (See above. Hypocrisy, you’ve found a home.) He did so even after the majority of his speech condemned Trump and his actions in great detail and said that “there is no question, none, that President Trump is practically and morally responsible for provoking the events of the day.” Whaaat? It appears the Mr. McConnell may have wanted to vote to convict. He probably would have brought more Republican Senators along with him by voting to convict, possibly even reaching the 67 vote threshold. But he would not have been with the majority in his own party and thus would not be the Republican Leader. His decision to acquit was a pure personal power move. He likes being his party’s leader. There were only a few profiles in courage that day.
What are the takeaways from this episode? I have a few that I discerned from the proceedings.
- There are no impeachable offenses. Two precedents have been set with Trump. You can try and get a foreign power to intervene in our elections and not be held accountable. Was the Ukraine case too complicated, arcane, or insignificant for you? Okay, how about Obstruction of Congress? Obstruction of Justice? Trump dodged all of those. But attempting to overthrow the government of the United States? That’s not an impeachable offense? If a president attempting a coup is not worthy of a conviction on that charge, then I am hard pressed to think what would be worthy.
- It is okay to use violence to try and overturn an election. In fact, if you lose and don’t like it you can use any means necessary to over turn it. Bully election officials. Lie. Threaten state officials. Lie. Disenfranchise millions of Americans and nullify their votes. Lie. Ignore election laws. Lie. Send a mob to disrupt the certification of the Electoral College vote. If someone in your administration — say, the Vice President of the United States — doesn’t help you overturn the election then send white supremacists to track him down and hang him. (“Hang Mike Pence. Hang Mike Pence.” I hope all of those loyal Trumpists in the Sedition Caucus took notice of what loyalty gets you with Trump.) Violence is okay if you don’t win the vote and you can do anything you can think of to try and change it.
- The minority rules. The conservative political observer David Frum wrote a very interesting article in The Atlantic titled “The Founders Were Wrong About Democracy”. In it he argues that the Founding Fathers thought that by setting up the government so that head strong populist charlatans could not hoodwink the American public into wild and self-defeating actions, they would create a stable and enduring republic. They specifically did not want a true democracy because they did not trust the vast unwashed, uneducated, and ill-informed average American (all white men, by the way) to do the right thing. But what we have now is a minority (Republicans) that control nearly every aspect of government by their ability to block actions favored by the majority of the people.
- The Electoral College exacerbates the problem of minority rule and aids hooligans like Trump in their attempts to thwart the votes of the majority. Trump lost the popular vote by over 3 million ballots in 2016. He got about 46 percent of the vote. As the math shows, that it is less than Al Gore, John Kerry and Mitt Romney got when they lost. There were other even closer elections. Trump did not win in a “landslide.” In 2020 he lost by over 7 million popular votes. In the current era that is a landslide. It is too big of a number to overcome. So where did Trump focus his efforts? He focused on states to try and get them to change their Electoral College votes. Where did he focus his efforts in Congress? On the certification of the Electoral College vote. He was hoping to throw the election into the House of Representatives where, although the Democrats have the majority, the vote would be by state, and the Republicans control the most state delegations. One state one vote. Thus South Dakota gets the same vote as California. We can see that the Electoral College is vulnerable. It is an anachronistic vestige of another time.
It was a near miss. Trump came closer to pulling it off than I think most people realize. Despite the hand-wringing over Trump’s acquittal and the jubilation of the Seditionists and Trumpists (mostly all the same folks), Trump is an injured power broker. He is soon to be engulfed in significant legal challenges that are not ignorable now that he is an ex-president.
For the moment, I rejoice in having a competent president, addressing the nation’s crises. Best of all I don’t have to hear about Twitter attacks, Big Lie rallies, or see a failed showman suck up all the air whenever he shows his face. In fact, I don’t think I’ve seen the face of the twice impeached worse president ever in weeks. And I sleep a lot better at night as a result.
I hope we learn the lessons of these past weeks and months. The system is not perfect. It can be broken. We need to address the issues that were exposed and close the legal loopholes. Forgetting the past and moving forward will not work in this case. Our republic is too important to pretend that it doesn’t need fixing.
Only one week into the Administration of President Joseph R. Biden, there is a definite change in tone from the White House and around the country. The remarkable Inauguration Day, in spite of the pandemic and extremely tight security precautions, brought home the sense that indeed, a new day had dawned and hope is in the air. Unfortunately, there is some unfinished business that must be attended to in order to keep our country moving forward.
Donald J. Trump is impeached for a second time. The Senate trial is scheduled for the week of 8 February. It is imperative that after a due process, the Senators vote their conscience and carry out their Constitutional duty rather than play party politics. This is not a “both sides do it” issue. The impeachment is not “politics as usual.” Only one side tried to destroy our country. As I will review below, for the first time in our nation’s history a president, of these United States, actively sought to overthrow the government and install himself as the unelected leader of the country. So far, the Trump supporters have presented a circular argument. They continue to raise questions about the electoral process claiming that it was subject to widespread fraud and was rigged. Trump and his cultists in the House and Senate continued to repeat these claims loud and long. This is propaganda utilized to its fullest to convince his loyal followers that the allegations — and it never moved beyond unproven allegations — were true. The House and Senate cultists argue that since their constituents believe the election was rigged, then they must represent their constituents. Of course they think that there was fraud because their elected officials tell them that. And they do this with a straight face. Senators Ted Cruz (TX) and Josh Hawley (MO) are the leaders of this ridiculous argument for their own personal ambitious goals. They use allegations that they create to justify their claim that it should be investigated — even though roughly 90 court cases proved otherwise and all 50 states certified the election, including those run by Trump’s own party. Even Trump’s personal attorney, oops, I mean the Attorney General of the United States, said that there was no fraud and that the results were legitimate.
And yet, after the insurrection that caused five deaths at the Capitol, eight Trump cultists in the Senate and 139 in the House voted to overturn the election. Learn their names. They are guilty of sedition and are as culpable as anyone else for the death and destruction that resulted from their lies. Unfortunately, most will not be held accountable. Probably none of them will be held accountable. Some of them are proud of the havoc that they wrought.
Make no mistake what they are saying and doing. Those Trump followers, the majority of their party, are demonstrating their belief that any candidate but their own is not legitimate. Period. They believe that stopping Democrats by any means necessary is better than succumbing to their “socialist” ways. Democracy be damned. White Christian men are supposed to be in charge. One party believes in elections and the peaceful transfer of power and one believes that such quaint customs apply only when they win. As the newest Senator from Alabama, a member of the Sedition Caucus, and eminent scholar Tommy Tuberville put it “my dad fought 76 years ago in Europe to free Europe from socialism.” In his speech he later explained that his dad helped in “liberating Paris from socialism and communism” during World War Two, therefore Democrats must not gain power. Facts just do not matter to them.
The Senate trial is a place to start. Contrary to the revisionist stories starting to be spun, Trump had a long pattern of trying to overturn this free and fair election. It was not a spontaneous act. The lead up to the attack started well before the election. For months, Trump repeated at his rallies that the only way he could lose was if the election was “rigged.” He touted fraud at every turn. He made baseless claims about mail-in voting and bogus concerns about voting machines. These despicable lies were the only foundation to his campaign’s numerous lawsuits around the country. They were all based on allegations, not facts. Every case was shot down. To put a finer point on it, the maker of the voting machines, New Dominion Voting Systems, is going after those that spread the lies. They just filed a defamation lawsuit against Rudy Giuliani for over a billion dollars (yes, billion). Other lawsuits caused Fox News to retract their statements repeating the lies against Dominion and to confirm that there was no fraudulent use of the machines. Other news outlets such as Newsmax had to do the same.
In court, baseless allegations do not win cases. Facts do. If you lie in court, there are penalties. Apparently, the Trump cultists in the House and Senate have no fear of retribution in the courts. They may be surprised.
After losing every meaningful court case surrounding the election, Trump pressured election officials in Michigan. Then he pressured the Michigan legislature. When that did not work, he tried pressuring the Pennsylvania legislature. When that did not work he went after officials (Republican, but that did not matter to him) in Georgia and Arizona. When that did not work he made his now infamous phone call to the Republican Georgia Secretary of State and threatened him with criminal proceedings if he did not “find 11,780 votes” — one more than Mr. Biden’s margin.
But that was not enough. Upstanding state and local officials refused to cave to his demands. So he moved on. We now know that he plotted with an attorney in the Department of Justice (DOJ) to fire the Acting Attorney General, bypass the chain of command and install a person as the Acting Attorney General that was willing to bring the full power of the government to get the election overturned. When that plan was thwarted he wanted the Solicitor General to take a case directly to the Supreme Court to have millions of votes thrown out.
It seems a pattern is developing here. But, wait! There’s more! And it gets worse.
Trump started Tweeting in December urging people to come to Washington DC for a “wild” “Save America” rally on the day the Electoral College votes would be certified by Congress. Trump campaign money and former staffers were used to help organize it. In the days before and again at the rally, Trump pressured Vice President Mike Pence to defy the Constitution and overturn the election by decertifying the Electoral College votes. Before the rally, Mr. Pence told Trump that he could not and would not decertify the votes. As a result, Trump implied to the mob at the rally that Mr. Pence was a threat to his continued campaign to overturn the election. They understood what they were being told to do. Mr. Pence was now a target. Many groups that participated in the attack clearly pre-planned their actions based on Trump’s statements at rallies and over Twitter. The attack on the Capitol was definitely not a spur of the moment spontaneous attack.
Trump sent the mob to the Capitol to “fight” for his re-election. When they broke through police lines and violently entered the building he did nothing to stop it for hours after the riot started. Numerous reports indicate that he actually enjoyed it. His followers were “fighting” for him like no one else would do. Reliable reports indicate that Mr. Pence had to fill in as the Commander-In-Chief to get the National Guard moving into the fray because Trump would not do it. (This should also be troubling to all of us. Separately, an inquiry should be held on this point. If the Vice President was the de facto Commander-In-Chief, there was a very real breakdown in Constitutional law.)
Now the Trumpists are arguing that the Impeachment and trial is “divisive”. As if defying the will of the people at the ballot box, fomenting sedition, and sending insurrectionists to overthrow the government is not divisive. Spineless politicians such as House Minority Leader Kevin McCarthy (CA) change their story daily. Originally he said that Trump “bears responsibility” for the attack. Now he says “I don’t believe he provoked it” and that “we all have some responsibility” for the attack. Perhaps he realized that if they convict Trump, then the whole cabal is admitting their own guilt in the plot.
So if the argument now is to “move along — nothing to see here folks” how many dead police officers or dead politicians would it take to convict him? Apparently one officer beaten to death by the “demonstrators” is not enough. Four other deaths is not enough. Would it be an impeachable offense if the mob got ahold of Mr. Pence and/or Speaker of the House Nancy Pelosi and harmed them? Would Leader McCarthy’s stance be different if he had been taken out of the House in zip tie handcuffs and put on trial on the Capitol steps? A near miss of a massive catastrophe does not absolve anyone of a crime.
More importantly, many experts on the dark side of our society where the white nationalists, Proud Boys, Boogaloo Bois (Boys), white supremacists and others operate say that for the attackers and their supporters, 6 January 2021 was their equivalent of 19 April 1775 at Lexington and Concord. They view the attack as the opening shots of the coming revolution. Some are ardent Trump supporters, some support Trump as a means to an end, but the goal is to overthrow the government. Just because they failed this time doesn’t mean that they have given up on doing so.
Without punishing every domestic terrorist that participated, without convicting Trump in the Senate, without holding politicians responsible for the Big Lie, we send the message that it is okay to do it. Without punishing those proven guilty to the fullest extent of the law, then 6 January was merely a dress rehearsal for what is to come. Whether or not we think that is true, the insurrectionists think it is. Whether or not you believe that Trump really expected to overthrow the government and have himself installed as the leader, the insurrectionists believed it. Whether or not you think Trump’s message was often racist, the racists thought he had their back.
Without accountability we cannot begin to heal and without healing there can be no unity.
I will be surprised if the Trump defense team actually tries to defend his actions. What will ensue in his “defense” is a Constitutional argument that an ex-president cannot be removed from office that he has already left. Therefore, they will argue, to try him, much less to convict him, is un-Constitutional. I am not an attorney and I am not a Constitutional scholar, but that line of argument makes no sense to me. If it carries the day, then no president can be held accountable for their actions. Even when, as in this case, it was the worst action ever taken by any president in our history. Trump systematically and with malice of forethought worked to destroy the Constitution and people died as a result. To that we just say “oh well?”
Trump supporters in the House and Senate remain afraid of Trump. Why this is so, totally escapes me. However, if in their hearts they wish he was gone, a conviction is the way to usher him onto the dust heap of history. Unfortunately, for most of them, cowardice trumps honor and truth. When the Senate Trumpists acquit him for a second time, it will make him relevant again. He would have no power if they did not give it to him. Apparently, for them, holding power is more sacred than their oath to support and defend the Constitution.
End it now, or suffer the ongoing violence and acrimony that our country can ill afford now, in the midst of a pandemic, or ever, if we really stand for what we say we do.
To my relief we will not have four more years of Donald J. Trump. I am not sure that our collective interests could have endured that. Joseph R. Biden Jr. will be sworn in as the 46th President of the United States on 20 January, 2021 at noon following an historic victory in last week’s election. When all of the votes are counted, President-elect Biden is expected to have over five million more votes than the sitting president. Not since Franklin D. Roosevelt in 1932 has a candidate beaten a sitting president by that large of a margin. Projections indicate that Mr. Biden will end up with 306 electoral votes, the same as Mr. Trump in 2016, who failed by three million votes to garner a popular vote win. By every measure, Mr. Biden is the clear winner in this election for president.
For now I will leave it to the historians to parse out the significance of this election. To me, it reinforces that we need to make serious changes to our election process. I am now convinced that the Electoral College must go. We need to learn to use absentee and mail-in voting effectively. We need all of the states to count those early ballots before Election Day so that results are posted in a timely fashion. We need to make Election Day a holiday. While it was inspiring to see that people would wait in line for as long as six or seven hours to vote in parts of our country, the question remains — why should they have to do so in the greatest democracy on earth?
I will leave it to the political analysts to dissect how Mr. Trump, now widely considered as our worst president ever, got more votes in this election than in 2016. In my view it was his apparently successful tactic to make the current pandemic a false choice between stopping its spread and reopening the economy. Coupled with his successful propaganda that Mr. Biden would only be a pawn in the hands of the — dare we say it? — socialists that will really run the country in his place, his campaign appears to be more effective than it should have been. Looking back over the last four years, I will never understand how so many people thought that he did a good job and that we wanted four more years of a budding autocrat in charge.
My primary concern is the ongoing shenanigans of the president and his enablers in the United States Senate and elsewhere. That Mr. Trump continues his refrain from the past year, that the only way he could lose was if the election was rigged, does not surprise me. His logic is his own. I will win. They say I lost. I could only lose if it was rigged. Therefore, it was rigged. I would expect nothing else from the man-baby currently occupying the Oval Office. I just want to yell get over it and get out!
I am most appalled at the attack on our democracy being perpetrated by the majority of Republican Senators. They are echoing and spreading Mr. Trump’s lies about a rigged election and consistently push the idea of voter fraud. This is extremely dangerous. It puts the legitimacy of our entire process in jeopardy. The Republicans keep trying to push law suits in the courts without evidence. As we used to say, they have gone “0 fer.” (All of them were dismissed as of this writing for lack of evidence.) Note that they only challenge the presidential results, even as they accept the results of the races that they won that were on the same ballots. So far, it appears that Americans accept the results of the voting, with 79% agreeing that Mr. Biden won and only 3% saying that Mr. Trump won. (The rest say that they don’t know or are waiting for more results.)
Given that the population as a whole accepts the results, why would senior Republicans deliberately and with malice of forethought push such wild tales that only undermine our election system? Why would they risk a nut case or a group of nut cases taking some sort of violent action to “solve” the problem themselves? I have three possibilities.
The easiest, silliest, and most popular theory is that everyone around Mr. Trump knows that he lost but that they must assuage his ego, lessen the blow, and come up with a story that allows him to believe that he is not a loser. If the election were stolen from him, then he did not lose. If this is true, then we should all be extremely happy that he is no longer president because such behavior is infantile. It also shows that senior Republicans have no integrity if they believe that such behavior, and such a dangerous story, is okay. They are willing to let the entire nation convulse to sooth the ego of one man. Shameful.
A second possibility is that they need the base to remain energized so that they can raise money and turn out the vote in Georgia. Two Senate seats will be decided there in January following a run-off between the top two vote-getters. The control of the Senate remains in the balance. If the Republicans win even one seat, Senate Majority Leader Mitch McConnell remains in place. If the Democrats win both seats, the split in the Senate will be 50-50 and Vice President-elect Kamala Harris breaks any ties, thus making Senator Chuck Schumer (D-NY) the Majority Leader.
A corollary of this theory is that because Mr. Trump did so much better than expected, he will continue to dominate the Republican Party and become a “king maker” for those with ambitions to run for president, or any other office, over the next four years. They need to keep him on their side and since personal loyalty to the Supreme Leader is the only thing that Mr. Trump cares about, they need to keep kowtowing to him. Mr. Trump is also using the claim of a corrupt election to raise money. For himself. Mr. Trump activated a “defense fund” web site that solicits donations to fight on and stop the “fraudulent” election in court. However, when one drills down into the fine print, the vast majority of the funds are going to Mr. Trump’s new political action committee (PAC) “Save America.” One thing you can be sure of with our current Commander-in-Chief, he never misses an opportunity to make a buck off of his supporters.
The third possibility, which I hesitate to bring up since it is so outlandish, is that Mr. Trump and at least some of his cohorts actually believe that the election was stolen. Or, at least they honestly think that they can play the game out to keep themselves in power by any means necessary. That scenario is absolutely unfathomable. And yet, for years we have thought that surely Mr. Trump would not go “that far,” and then he crashes right on through any barriers to keep him on track. One lesson that he and his enablers have learned is that they can ignore the law with impunity because in the end, no one can do anything to stop them. He was impeached. So what? Congressional hearings? Ignore them. Department of Justice investigations? William Barr won’t allow it. And on, and on.
In the aftermath of the election he is systematically cleaning out all of his government appointees deemed insufficiently loyal and replacing them with his most fierce acolytes. In agency after agency this is ongoing. The headline grabber is in the Department of Defense where the Secretary of Defense was arbitrarily “terminated” via Tweet without warning to any official in the Pentagon. Yesterday, other high civilian officials in the department were also summarily fired and replaced by die-hard Trump loyalists. Why? Good question. It could be retribution for not doing Mr. Trump’s bidding. It could be a loyalty reward to his new appointees so that those folks can put it on their resume for the future. It could be because there is a bigger plan that the removed officials would not have allowed.
So far, all of those removed were civilians. I will be truly alarmed if Mr. Trump removes the Chairman of the Joint Chiefs (reportedly Mr. Trump is unhappy with him) or other senior military officers. Anyone that stands in Mr. Trump’s way gets removed. To what end? In addition, when asked about a transition yesterday, Secretary of State Pompeo replied that he was ready to transition to four more years of Mr. Trump. A not funny joke from someone who should know better? (He is a West Point graduate. What happened to “Duty. Honor. Country.”?) Or a hint?
I am not a conspiracy theorist by nature. I am not one now. All I know is that nothing Mr. Trump does is surprising, even as at the same time it can be shocking. Additionally, his administration refuses to cooperate with the incoming administration for a smooth transition. Perhaps Mr. Trump and his minions think this is some kind of payback, but it is also dangerous. Transition teams are not just courtesies or traditions. They need to get to work in order for the government to function smoothly. Any delay much past the end of this week will have an impact on our national security. One finding of the 9/11 Commission is that the delay in calling the Bush-Gore election, and thus a far shorter transition for President Bush and his team, was a contributing factor to failing to protect against the terrorist attack. They were still getting up to speed on a number of issues and still putting people and policies in place.
This is the United States of America. By deliberately creating chaos and delaying a smooth transition of the government, Mr. Trump and his allies are undermining our national security. With a bevy of mostly unqualified “actings” in key positions throughout the government for the next ten weeks, bad actors are calibrating their options to take advantage of the situation or to further undermine our world standing. By deliberately lying about the election, Mr. Trump and his supporters allow domestic terror groups to see an opportunity to take advantage of the chaos.
All involved took an oath of office to the Constitution, not to one person. It is time that they do a gut check and reorient their thinking towards what is best for the country rather than for themselves. Unfortunately, that may be one of Mr. Trump’s legacies. It isn’t about country, it’s about me, me, me.
I still remain optimistic for our country. We can get through this. I just do not understand how some of our officials can ignore their oath and their sworn duty.
The country is one week away from an election that likely will come down to the wire. If (when?) the Democrats win the White House and Senate and maintain their majority in the House, there will be several key issues that need immediate intention and others that may fundamentally change our system of government.
Of immediate concern is the ongoing pandemic. The Trump Administration threw in the towel and surrendered to the inevitable spread of Covid-19. Indeed, the administration surrendered back in March when the president refused to take responsibility for any actions to mitigate the spread of the disease. With his super-spreader events held daily all around the country, we are wasting our time expecting him to do anything positive to reduce the death toll that is expected to approach 400,000 dead Americans by Inauguration Day. In my view, win or lose, Mr. Trump will do nothing in the coming months to change the course of the disease.
Senate Majority Leader Mitch McConnell (R-KY) adjourned the Senate yesterday without addressing the economic impact of the pandemic. Several relief bills, starting last May, passed the House but Mr. McConnell refused to take them up in the Senate. Likely, he failed to do his job for two reasons. First, there was widespread disagreement within his caucus as to whether or not to spend more money. Mr. McConnell did not want to put any of his Senators in a politically precarious position by forcing them to vote one way or another on helping the average working person in the United States. Second, Mr. McConnell probably sees the writing on the wall that Mr. Trump will not be re-elected. Senator McConnell will do all in his power to make life miserable for a President Biden, including trying to keep the economy struggling so that Mr. Biden cannot take credit for succeeding where the current ruling party failed.
The pandemic will be the first and most important issue for a Biden Administration to address. Economic relief will be the first order of business for a Democratic Congress. Those plans are ready for implementation as soon as the new president and Congress are sworn in. Only time will tell if they are effective, but it seems that any attempt to improve the situation is better than none. We cannot sit around and wait for a vaccine or for effective therapies to help patients in the hospital. Those are important, but don’t yet exist. The real issue is what can be done now to stop the spread of the disease. We already know that masks, social distancing and good hygiene go a long way. For some misguided reason, those successful strategies have become politicized by Mr. Trump. It will take time, and a coordinated effort to overcome that mind set and to restore what has been lost over the last seven months.
Longer term, a Democratic administration and Congress have fundamental issues to address as to how government works. Legislation to institutionalize norms that have been respected in the past but ignored over the last few years are necessary. Trust in the character of the president is a charming relic of the past that we now know is too dangerous. Put it into law.
In addition, there are three dilemmas that Democrats will face. These are whether to:
- Investigate and prosecute any crimes committed by the president and/or members of his administration.
- End the filibuster in the Senate.
- Change the number of Justices on the Supreme Court.
Revenge and retribution will be on many minds come January. That feeling will not only color the views of politicians in Washington but also those of many of the citizens that voted them into office. The current administration and their enablers in the Senate ran roughshod over all of the norms and courtesies that traditionally applied in the government and especially in the Senate. Look no further than the court packing that occurred with the refusal to take up President Obama’s nominee to the Court eight months before an election, and the subsequent rush job to put Mr. Trump’s nominee on the Court eight days before Election Day after nearly 60 million Americans had already voted.
Constitutionally, the Republicans were well within their power to do both of those deeds, no matter how much it reeks of hypocrisy. It was legal. However, one of my guiding principles has been that just because you can do something doesn’t mean that you should. In my view, that idea should apply to the Democrats as well.
With that in mind, let’s look at the three dilemmas facing a Democratic government.
Investigate and Prosecute. What to do about Mr. Donald J. Trump who has abused just about every principle in the book and enriched himself and his family throughout his term? My nuanced answer is “it depends.” There is a precedent. Following President Nixon’s resignation, President Ford pardoned him of all crimes. The argument was that the country had already been through very rough times so do not protract it. Move on and start over. As President Ford said “our long national nightmare is over.”
I am not sure that we can do that with Mr. Trump. No president can be prosecuted for bad policy, the voters take care of that. However, if evidence comes to light that Mr. Trump was knowingly aiding and abetting a foreign adversary, for example, then an investigation and possible prosecution are very necessary. We now know that no counter-intelligence or national security investigation was ever conducted to look into Mr. Trump’s activities. The Mueller Investigation did not touch on those issues. The impeachment process did not look into that either.
We have also learned that federal and New York state District Attorneys are looking into Mr. Trump’s finances and possible crimes (like racketeering) prior to his entering office — and maybe while in office.
I say to let the chips fall where they may. If Mr. Biden is president he should have absolutely no involvement in any investigation or prosecution of Mr. Trump or his associates. Let the District Attorneys finish their investigations and decide whether or not to prosecute. This will be difficult to do as many in this country will readily assume that such action is merely one more thing on the list of “persecutions” Mr. Trump has “endured.” I think that in the current era it is necessary to show that no one is above the law if they knowingly commit crimes. Even if Mr. Trump is pardoned (there are multiple scenarios that might apply to make that happen) it would only apply to federal laws. State laws fall under a different jurisdiction and can only be pardoned by the respective governors. Just follow the money. If it leads to Mr. Trump, his children, any of his associates or Trump, Inc. just play it straight as the justice system would pursue any other citizen. If there is nothing there, then so be it.
End the Filibuster. The Senate was designed to be different than the House of Representatives. Until just over one hundred years ago with the passage of the 17th Amendment, Senators were not directly elected by the people. They were separate from the rabble that elects the House (also why we have an Electoral College) and therefore would be more deliberate, thoughtful and statesmanlike. One of the great Senate rules that helped to promote that atmosphere and to provide an opportunity for compromise is the filibuster. While one Senator could theoretically hold up the works, in practice it often resulted in compromises in order to get the two-thirds (later changed to 60) votes required to move legislation and Senate confirmed nominees.
There are now calls to end the filibuster. Such calls are nothing new, especially when one party or the other feels shut out or stymied in moving their projects forward. Then Minority Leader McConnell used the filibuster to stop the confirmation of federal judges under President Obama, leading then Majority Leader Harry Reid (D-NV) to go “nuclear” and change the Senate rules to require only a simple majority to confirm federal judges. Anticipating President Trump’s Supreme Court nominees, now Majority Leader McConnell knew that his narrow majority would not likely be able to get Supreme Court nominees confirmed following his dirty trick blocking Merrick Garland from the Court, so he changed the rules to only require a simple majority for confirmation of Supreme Court Justices. Both actions were huge mistakes.
Without the filibuster, the Senate becomes a small House of Representatives. The majority can ram through any legislation they want on a simple majority. The Senate is already way too partisan, ending the filibuster will only make it more so. There will be no need to compromise on anything.
The Democrats know that Mr. McConnell will do anything in his power to move his agenda. They run the risk of him, or another Republican Majority Leader, doing away with the filibuster in the future. It is a risk they should take. There can be little to no progress in regaining civility in government and consequently in the country if all of the rules go out the window and only pure partisan politics is in play. The Senate will cease to be the body it was envisioned to be if the rules change to favor only one party.
Change the Number of Justices. Likewise, I think the same way about the Supreme Court. The number of Justices is determined by law, not by the Constitution and can be changed. It can reasonably be argued that the Republicans already packed the federal justice system. When in the majority they blocked nearly every nominee of President Obama to every federal court. They stopped the nomination of Judge Garland. It could be reasonably argued that two of the three seats filled by Mr. Trump were stolen seats. Regardless, I think it a mistake to add three or more (as has been suggested) Justices to create a more “balanced” judiciary. Follow the current rules and make them work. The Democrats got outmaneuvered by Mr. McConnell. He plays hard ball and will use every trick in the book to get what he wants. Use the rules to get to where the country needs to be, but do not change them for partisan reasons.
The political partisan vibe needs to change. Mr. Trump has been many things including the worst president ever. He also exacerbated the divisions in our country for his own egomaniacal and profit making reasons. Let’s change that atmosphere. Besides, if the Republicans refuse to go along and restore a measure of compromise, then you can change the rules.
There is of course another remedy. That is through legislation. Pass laws to institutionalize the norms of government that we expect. Pass laws that provide health care that can pass review by the courts, for example, should the Affordable Care Act be overturned. Pass a law explicitly institutionalizing same sex marriage. And so forth. Use the existing rules through legislation to overcome any interpretation made by nine citizens.
I look forward to the new era that will dawn at noon on 20 January 2021. We all need to work together to move out from under the pandemic — to me a symbol of all that is wrong with the current administration. When we defeat the virus through national cooperation and neighbor helping neighbor, let’s keep that spirit and apply it to our political discourse.
Over the last four years the Republican Party as a whole, but especially in Congress, lost its way. They abandoned everything that they used to believe in in order to assuage the Tweeter-in-Chief. As a result, the party has been on life support most of that time. We can now call the time of death as Sunday 23 August, 2020.
The Republican Party is now officially a wholly owned subsidiary of Trump Family, Inc.
Lest you think I am exaggerating, on the eve of the Republican National Convention, the party announced that for the first time in its history, they would have no platform. In a one page declaration of “whereases” assailing the media and affirming their enthusiasm for Mr. Trump, they concluded by saying,
“Resolved, That the Republican Party has and will continue to enthusiastically support the President’s America-first agenda;
Resolved, That the 2020 Republican National Convention will adjourn without adopting a new platform until the 2024 Republican National Convention.”
I guess it boils down to “I’ll have what he’s having.” More succinctly, the Republicans now publicly declare that they stand for nothing. There is no official vision, plan, policy, or goal that they will try to achieve over the next four years. Whatever the president says at the moment, is, I suppose, what they will do, even if tomorrow they need to reverse course when he changes his mind after seeing something on Fox News. The Republicans will just wait around for a kingly pronouncement.
Unfortunately, Mr. Trump does not have a vision or plan for the future either. In interview after interview on Fox News and other friendly venues, interviewers have tossed him softball questions as to what to expect over a possible second term. So far, zilch, nada, zip, nothing. His replies only have been rambling statements about past grievances, pet peeves, or “acing” a cognitive ability test.
I find it sad, and a bad omen for our country. I believe firmly in the two party system as part of the checks and balances that keep our country on a relatively middle of the road path to the future.
Arguably, many past platforms may have been exercises in producing wish lists by those that write them. More positively, they provide a blueprint, plan, policies and aspirational goals that the respective parties want to accomplish should they carry the election. Now, according to their own document, there is nothing that the Republicans want to achieve other than whatever Mr. Donald J. Trump and his family declare in the moment that they should do.
The Republican Party is dead. The Cult of Trump is alive and well.
The Republican National Convention is now nothing short of a coronation for Mr. Trump. Indeed, Mr. Trump has repeatedly declared that the upcoming election would be “rigged.” Yesterday, to kick off his convention, he declared that “the only way they can take this election away from us is if this is a rigged election.” Think about that. His party has given him carte blanche to do whatever he wants, and he publicly declares, repeatedly, that the only election result he will accept is if he wins.
That is a combination that should concern us all, especially given Mr. Trump’s increasingly lawless actions.
I do not wish to insult the intelligence or motives of those that support Mr. Trump. It is a long American tradition to distrust the government, the media, and experts about anything and everything. Mr. Trump is nothing else if not a salesman. He knows how to tap into that resentment. No matter the facts, or the eloquence of the argument, no one is going to sway the die-hard Trump supporter that they should stop supporting him. Listening to the language showered upon him in the first day of the Republican Convention shows he has attained a Messianic following. It is truly a cult of personality. His support rests upon cultural and emotional issues, not a coherent vision for the future. That is not going to change no matter how outrageous his behavior becomes over the coming months. His followers are going to “stick it to the man” no matter what.
The establishment Republican Party that may have moderated his behavior ceased to exist. They will not do their Constitutional duty. I blame the Republican members of Congress and their obvious cowardice in the face of actions by a president that they would have wholeheartedly condemned in any other modern president Republican or Democrat. Perhaps future historians will be able to figure out why there has been such a wide-spread display of cowardice on their part. I cannot explain it.
It is now up to the voters to decide. We need to weed out the merely outrageous aspects of Mr. Trump’s behavior that distract us nearly every wearying day. Instead it is time to focus on those actions of his, as aided and abetted by a cowering Senate, that threaten our future as a Republic.
We cannot be intimidated or cowed. Too much depends on it. Please vote, no matter what.
In case you missed it, the Confederate States of America (CSA) ceased to exist 155 years ago. It will not rise again. The current divisiveness over Confederate symbols, flags, and names for military bases makes no sense to me. As I have written in this space before, there was a time when I was a young boy that I bought into the culture of the “Lost Cause” — the idea of a chivalrous, valiant, and courageous battle of the southern states against the oppressors from the North. But, then I grew up. I learned history. I grasped what the Confederate States stood for. I was appalled that many of the military leaders of the CSA were West Point graduates who swore a solemn oath to support and defend the Constitution of the United States of America and that they turned into traitors willing to destroy the country to which they pledged their allegiance. And, oh yeah, they were losers.
Even today one will hear arguments that the war was really about “States Rights” (the right to enslave other human beings), or to preserve a “way of life” (based on the enslavement of other human beings) or to keep their economy from being destroyed (an economy based on free labor from the enslavement of other human beings). It doesn’t take much to realize what all the code words mean.
Arguments that the majority of Confederate soldiers were not slave holders but were merely protecting their families and homes doesn’t hold water when you realize the psychology of those times. While they may not personally have enslaved other human beings, they knew that no matter how bad their life might be, someone else was worse off and could be looked down upon as sub-human, abused, and treated as property — which made their own lot in life more acceptable.
The Defense Authorization Act working its way through Congress contains an amendment to rename the ten U.S. Army bases named after Confederate generals and directs the Department of Defense to no longer name anything after anyone or any battle victory or any other landmark from the Confederacy. The Worst President Ever is threatening to veto the bill — putting in jeopardy the funding for our military currently fighting over seas — because of that provision. Ridiculous.
Let’s look at the facts. Of the ten bases, five were built and named during World War I, five during World War II. Each of the bases were named for a general from that state in an effort to smooth the way for annexation of land needed to build the bases to fight our wars. Local politics was mostly the reason for naming the bases, not some glorification of their military prowess or heroism. Indeed, several of those generals were among the worst in military history, wasting lives on ill-conceived and poorly executed battle plans. Losers.
And the monuments. Yes, let’s look at the Confederate monuments that are now slowly coming down. Of the roughly 740 monuments that remain, almost 700 of them were put up in the decades after 1900. Nearly 400 in 1900-1920 were established in cities and towns. The main source of those statues? A powerful and determined lobbying group we know as the United Daughters of the Confederacy were responsible for the vast majority of them. Ostensibly their cause was to honor their gallant fathers and grandfathers but they were so readily received because in post-Reconstruction America it was a clear signal to Black Americans that they may be free of their enslavement, but the rules and societal norms of the slave era had not changed. Imagine as the free son or daughter of a former slave going to the county court house seeking justice and outside the building is a monument to a Confederate soldier or to someone like John B. Gordon (for whom a fort in Georgia is named) who was later the leader of the Ku Klux Klan in Georgia. Intimidation was the goal and it clearly sent a signal that there was no justice under any law for Black Americans, regardless of what may be written in the statutes.
The Confederate battle flag came into popular use during the 1950’s and 60’s. For example, it was flown at the state capital in Georgia beginning in 1956 and over the capital in South Carolina in 1962. Coincidentally, one might suppose, with the beginning of the Civil Rights movement? (Thankfully, they were removed after the shooting in a Charleston church in 2015, but not without a political fight. Last week the Mississippi legislature voted to remove it from their state flag.) Just today Mr. Trump got on Twitter and chastised NASCAR officials for banning the flag from their race tracks. The U.S. Navy and U.S. Marine Corps only recently banned the flag from all of its bases, ships, aircraft and property.
Cries that the removal of these symbols of treason and oppression are attempts to “rewrite history” fall on deaf ears in my case. The only rewriting is the canard that these symbols are somehow proud vestiges of America’s culture and founding principles and that they reflect the American spirit. The only American spirit that they reflect is that of white supremacy. When armed right wing militia groups demonstrate in Michigan or Oregon carrying Confederate flags, they are not celebrating their heritage. They are purposely carrying a symbol of their hate for the “others” — anyone who does not have the same color skin as they do.
Under the First Amendment anyone can fly any flag they care to fly. If some redneck thinks that a giant Confederate battle flag flapping from the back of his pickup truck somehow makes him more manly, have at it. To me it only shows a heaping pile of insecurity on his part. Or ignorance. Or discrimination. Or all of the above. However, no institution in the United States government should be a part of glorifying a shameful part of our history. In my opinion, no corporation, sports authority or any other public entity should support that cause either.
We cannot rewrite history. No one is trying to wipe out our past by advocating for the removal of these symbols. However, we do need to write a fuller history that incorporates all elements of that past. As the cliche goes, we need to include the good, the bad and the ugly and to put it all into context.
Arguments ensue and demagogues rabble rouse over the question of “where does it stop?” How far do we go in understanding the flaws and failures of those who went before us? Outside of the hate mongering and fear laced rhetoric, it is a difficult question. Who should we honor and how should we do that are legitimate questions that deserve consideration through community input, scholarly research, historical context and the realization that no one of us is perfect. Perhaps we differentiate between those that laid out fundamental principles toward which our nation continues to strive versus those that worked to hold back progress and to deny freedom for all.
It seems to me that it is a no-brainer as to where to start. There should be no tax payer supported monuments or other honors for those that forswore their oath to the Constitution, turned into traitors against the United States of America, and fought a war to enforce the enslavement of our fellow Americans.
After 155 years, enough is enough!