From Roger Fitch and our friends down under at Justinian.

 

It's Hitlerish

Roger Fitch Esq • Friday, November 8, 2024

Reelection of a charlatan ... Republicans take popular vote for the first time in 20 years ... Amnesia ... Trashing a democracy ... Trump and his team of troubled men ... Mainstream media wilts in the eye of the storm ... Depravity, greed and revenge are the new normal ... Roger Fitch files from Washington 

"Some Trump voters may believe his lies. But plenty more want Trump to be terrifying and stomach-turning so that re-electing him will be a fully realized act of social revenge. Harris cannot propose any policy, offer any benefit, or adopt any position that competes with that feeling" - Atlantic

"What luck for the rulers that men do not think" - Adolf Hitler

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Before the election, the NYRB and Atlantic warned that the 60th presidential election could mark the end of democracy in America. The Washington Monthly noted a Nazi analogy to the complicity of America's traditional conservatives in Trump's takeover of the Republican Party. The NYRB published reviews of new books on Hitler's 1933 ascent to power in Germany.

In one of the two dominant political parties there was no shame; no law, custom or standard of common decency that party operatives wouldn't transgress. Their presidential candidate, Donald Trump, was the worst, embracing racism and misogyny, or misogynoir, in the case of his opponent Kamala Harris.

Close to the election, the Republican candidate's behaviour became more erratic: at a charitable function, the white-tie Al Smith dinner, he descended into insults and obscenities in a room filled with Catholic priests, presided over by the Archbishop of New York. 

At campaign stops he called Harris a "shit vice-president" and extolled the genital endowments of a dead  golfer. His rallies became freak shows offering "extra buffoonery with a side of fascism", entertainment for his supporters and a continuation of the TV series that made him a household name, The Apprentice.

The ex-president himself saw it as a TV show. In explaining his loss in their "debate", he suggested Harris was given the answers in advance, like the 1950s quiz show scandals.

The Republican meanwhile hawked the same tat one might see in late-night TV ads: gold sneakers, trading cards (of himself), watches, the perfume "Trump" (Musk-scented?), even a "Trump bible" (printed in China) unsuccessfully foisted on Oklahoma school children.  

This was the classy candidate that the once-venerable Republican Party offered for president in 2024.

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Trump wasn't guaranteed to win: in the last PBS/NPR/Marist Poll, reported on election eve, Harris led Trump 51% to 47%, outside the margin of error. 

Never mind the polls; on election day, Trump won easily. His supporters got what they wanted and Trump gets to stay out of federal prison. He can now have what he craves most (after money): revenge.

There was clearly collective amnesia about Trump's last time in office, when, historians say, he was the worst president in American history. If only his followers had recalled some of the 100 worst things he did, like cruelly separating immigrants from their children, tearing-up Obama's Iranian agreement, ditching the Paris Accords and jettisoning pandemic preparations.

And his stupidity. Did no one remember his offer to swap Puerto Rico to the Danes for Greenland? His suggestion that drinking bleach would ward off Covid? The 200,000+  additional Americans who died unnecessarily in the pandemic because of his unscientific and incompetent response?

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Americans at Madison Square Garden, 1939

Democracy is wasted on Americans. They chose, as their president, an adjudged sexual predator who will remain a convicted NY felon even if he quashes the federal charges against him. 

Twice-impeached as president, he's an unrepentant and compulsive liar, fake Christian, humourless bigot and a bully who has made over 100 threats to prosecute or punish perceived enemies and will now have the chance to do so. 

How did a man so obviously unfit to govern, a fraud and a charlatan whose every utterance insults one's intelligence, win the 2024 presidential election? Inflation and xenophobia alone don't explain it. Was it the votes of racists and misogynists, homophobes, social outcasts, a revenge of the underclass? 

Somehow, traditional and logical constituencies of the Democrats - the young, Latinos, black men - were poached by a party running on grievance and anti-immigrant animus. 

Trump's final rally, on October 27 at New York's Madison Square Garden, was consciously Hitlerian, echoing the giant American Nazi rally at MSG in 1939. Everything was a reminder that a new Trump presidency would be cruel and violent. The speakers at the hate-filled rally leant straight into racism and neo-fascism. Even Puerto Ricans - US citizens - were included in disgusting nationalist attacks.

As the election approached, dire warnings from history were sounded. Two senior retired generals, Trump's former White House chief of staff and the chairman of the joint chiefs of staff, characterised Trump as a fascist, and so he seemed, his speeches channelling Mussolini, Hitler and Stalin.

Trump had said he needed generals like Hitler's, perhaps planning their use in das Vaterland, for he also consulted torture memo author John Yoo regarding military deployments within the US, forbidden under the Posse Comitatus Act. The ex-president also wrongly claimed he could use the wartime 1798 Alien Enemies Act for mass deportations of "invaders".

By the time of the election, Harris and nearly half the electorate agreed: Donald Trump was a fascist. No one cared. 

If only the media had learned how to tell the truth about Trump or acknowledged the existential threat to a free press. There were, of course, editorial endorsements of Harris, in the Times, Guardian and Atlantic, but the Washington Post (who logged 30,000 Trump lies during his first term) declined to endorse either candidate, apparently taking Trump's press threats literally and fearing his vengeful whims. 

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In the end it didn't matter. Trump has won the electoral college, and is winning the popular vote, a first for any Republican candidate since 2004. As of Thursday, November 9th, the vote totals stood at 72.77 million for Trump versus 68.1 million for Harris. 

It's impossible to explain Donald Trump's enduring popularity. It's not just his entertainment value. It's been called a cult, cognitive dissonance, a folie à deux where millions shared the delusion that Trump won the 2020 election, just on his say-so. 

Trump's crimes and corruption have had no effect on his supporters. His greed and malevolence, his  narcissism, bad language and nasty manners, all seem to be accepted as a part of the rightwing package. As the Atlantic predicted, Trump's depravity would not cost him the election.

Meanwhile, for Trump loyal operatives, shame has been obliterated, and legal consequences are passé. It's no surprise then, that amongst the genuine Trump electors whose electoral college votes will be cast in January 2025, there will be fake electors from 2020: those who acted as Trump's sham electors in seven "swing states".

Some are under indictment in their home states for their 2020 crimes, and were open to repeating their crimes this year. 

It looks like they won't need to.

FROM OUR FRIENDS DOWN UNDER AT JUSTINIAN

 

Bring back Dwight Eisenhower

Roger Fitch Esq • Tuesday, October 15, 2024

Supreme Court's new term ... Judicial culture war ... Motions for Trump's immunity determinations ... Cognitive decline on the election trail ... Judges waiting to muddle the election results ... Election countdown ... Plans for a new Supreme Court ... Our US legal correspondent Roger Fitch reports from Washington 

"[Trump] was a particularly unattractive version of his titanically arrogant, spectacularly dishonest and shockingly ill-informed self, claiming that Democrats were slaughtering newborns, that Harris was a Marxist, that he'd championed the Affordable Care Act, that the Jan. 6 rioters were veritable peaceniks and that as soon as he turns his gilded hand to the war between Russia and Ukraine ... it will magically end" - NYT's Frank Bruni on the Harris-Trump debate

"[N]o one in the Republican party dare say the emperor is naked and demented" - Salon

"[T]he press ... is the weak slat under the bed of democracy" - AJ Liebling

The countdown to the presidential election has begun, and the media, clinging to the safer narrative, have given the candidates the full horse race spin. Although Trump's cognitive decline should be topic one, his rallies are often reported in facile headlines and articles that ignore, paper-over or polish the incoherent rants of the half-mad Republican candidate. 

The ex-president, now a convicted felon, has moved beyond personality disorder, egomania and malignant narcissism, into new realms of fantasy beliefs, yet his craziness is scrubbed up by the media.

At the 11th hour, in the midst of media "sane-washing", Trump's mental fitness is finally being addressed, even by the timid NY Times. 

As a Salon columnist remarked, the former president "was always hobbled with severe personality disorders and a lifelong aversion to learning, but this is different. He's losing words, forgetting basic details (like who he's running against) and droning on about stuff that only makes sense in his fractured brain".

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"[I]f the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court ... the people will have ceased to be their own rulers, having ... practically resigned their Government into the hands of that ... tribunal" - Abraham Lincoln

"Judicial activism is a great threat to the rule of law because unaccountable federal judges are usurping democracy, ignoring the constitution and separation of powers, and imposing their personal opinions on the public ... We oppose stealth nominations to the federal bench ..." - Republican Party platform (2008)

From the Washington Post 

The supreme court is back in town for a new term, and it won't be pretty. For one thing, CJ Roberts seems to be joining the court's MAGA wing. With its partisan Republican majority, the court could open a new front for Project 2025 and its patrons, the Heritage Foundation and Leonard Leo, and for Leo's causes.

Contrived, retrograde cases, none too absurd to consider, will be filed before sympathetic lower-court judges, i.e, "movement" Republican lawyers groomed by the conservative legal organisation Federalist Society, "unaccountable federal judges" who were Trump's "stealth nominations" to the federal bench. 

Some pernicious lower court decisions are unavoidable, due to twisted precedents issued by the Trumped SCOTUS. 

The court's 2022 Bruen jurisprudence compelled an all-Democrat 9th circuit panel to find states can't ban guns in banks; in Massachusetts, the Supreme Judicial Court ruled that carrying of switchblades must be allowed. 

The Loper case from last term, overruling Chevron, caused a new wave of attacks on administrative law, some of them among relists for this term. 

The Nation previewed some of this term's pending cases, including the extraordinary death penalty appeal in Glossip v Oklahoma. That appeal, now argued, involves the dogged determination of the Oklahoma Court of Criminal Appeals to force an execution opposed by both prosecutor and state attorney general. 

Gorsuch: keen supporter of the death penalty

Fortunately for Richard Glossip, Neil Gorsuch was absent. Justice Gorsuch - a keen supporter of the death penalty despite his Oxford Phil D extolling the sanctity of human life - recused; as a 10th Circuit judge, he heard a previous appeal of the case.

The 2024 term could in fact turn into a culture war. More contentious cases here. 

Finally, as this is a presidential election year, majority mischief could include supreme court attempts to muddle the election and tip it to the Republican candidate, as happened once before. Slate and Lawfare have more.

Meanwhile, legislation has been introduced in the Senate to add six more justices to the court and require two-thirds majorities for overturning Acts of congress. 

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"The fact the defendant is engaged in a political campaign is not going to allow him any greater or lesser latitude than any defendant in a criminal case." – Judge Tanya Chutkan  

Donald Trump remains on trial in Washington DC for attempting to overthrow the 2020 election. 

Judge Chutkan: sorting the official from the unofficial acts

After the supreme court's astonishing July decision that presidents have criminal immunity for "official" acts, Trump's case was remanded to Judge Chutkan, and in August, Special Prosecutor Jack Smith filed a superseding indictment. More here. 

The new indictment is tailored to Trump's private acts as a candidate, separate from the official "core" presidential acts newly-immunised in Trump v US; Chutkan must determine which charges are triable, i.e, did not involve official acts.

This month, the Special Prosecutor filed his "bombshell immunity brief", i.e, Motion for Immunity Determinations, including new details in the factual proffer of evidence to be offered. More here and here. 

The Intercept and Just Security have identified the individuals whose names appear in the proffer. 

Trump is intent on striking out the charges involving the potentially-lethal plot against his vice president, Mike Pence. 

Some seemed surprised by Smith's disclosure of Republican Party villainy, but it was nothing new for those who study US history. Republicans have meddled in US elections for years, well before Bush v Gore (2000), when conservatives on the court intervened in a presidential election, stopped a Florida recount, and awarded the presidency to George Bush. 

Three partisan operatives involved in the 2000 skulduggery are now on the court: CJ Roberts and Justices Kavanaugh and Barrett.

Before Florida, Republican treachery usually involved interference in US foreign policy through back channel communications with other nations, e.g, North Vietnam (1968), Iran (1980) and Russia (2016); the Putin-related contacts have continued through three elections. As Thom Hartmann commented: 

"[T]he simple reality about the modern GOP - the simple context for Trump's indictment - is that the last Republican president who wasn't a criminal and didn't commit treason by conspiring with foreign governments to acquire or hold power was Dwight D. Eisenhower in 1952 and 1956."     

Eisenhower: the last non-crooked Republican in the White House

What if Trump actually wins? Rolling Stone paints the possibilities. The presidential candidate is already threatening to jail everyone who has opposed him, even lawyers and donors. 

Just Security has provided a chronology of twelve times when Trump, as president, targeted perceived enemies for prosecution. 

Win or lose, Trump could still weasel out of his $454 million civil fraud judgment, if recent oral argument before a New York appeals court is any indication. 

 

From Roger Fitch and our friends down under at Justinian

 

Election muddling

Roger Fitch Esq • Wednesday, September 4, 2024

Mounting frenzy ... Democrats produce a Black Swan moment ... Trump's own goals ... Australia's most toxic export ... Murdoch - the man who gave us Trump ... Plans for a new "steal" campaign ... Republican judges  meddling in the election ... Roger Fitch files from Washington 

"Trump should step aside as his criminal convictions and continued legal troubles have clearly taken a toll on the 78 year old conman" - Congresswoman Ilhan Omar (D-Minnesota)

"Kamala Harris has a resumé. Donald Trump has a rap sheet" - Congresswoman Jasmine Crockett (D-Texas)

Americans seem to be awakening from the learned helplessness induced by the Trump Stolen Election Delusion. For nearly four years, a political subversive and supporter of violent insurrection has been running around the country, claiming he won an election he actually lost by seven million votes. Many believed him. 

The spell of this absurdist drama may finally be breaking. There's been a remarkable change since the Democrats chose an articulate career prosecutor to stand for president against the incoherent felon representing the Republicans. 

Only weeks ago, Democrats were dreading their upcoming August convention, with President Biden's campaign seemingly doomed, even when facing such a dreadful candidate as Trump. 

What no one expected was a Black Swan event. Jonathan Alter explains.

That came when Mr Biden, though a "transformative" president, stumbled, withdrew, and was replaced as candidate by his Vice-President, Kamala Harris who has recently led by 3+ points. Trump is now the weaker candidate, and the election is soon - November 5th.

On the eve of the Democrats' convention, House Republicans released the report of a sham "impeachment investigation" of President Biden. As there was no evidence of wrongdoing, and Mr Biden was no longer the candidate, it sank like a stone. 

Kamala Harris' Black Swan summer

The convention was a triumph for Democrats and especially Harris. The party is on the offensive, ready to give Republicans hell.

Additional wins in the congress are also possible, and are badly needed to break the legislative logjam. 

Due to Republican obstruction in the house, just 78 laws passed the 118th congress. When the Democrats controlled the house in the previous two congresses, 344 and 360 public laws were passed, respectively. 

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Even before the convention, Mr Trump, goaded on by instinctive misogyny and racism, began a series of spectacular own-goals. 

The most amazing was his appearance before a convention of black journalists, where he suggested there was political calculation in Harris describing herself as "black" (her father is a well-known Jamaican economist, Dr Donald J Harris), rather than South Asian (her late mother, the noted biomedical scientist Dr Shyamala Gopalan, was from India). 

Trump strongly implied Harris had only recently, for cynical purposes, chosen to identify as black: it was all a disingenuous melatonin metamorphosis. 

The resulting chorus of boos provided one of Trump's first Ceauşescu moments, and the incident itself received a searing Michelle Obama riposte at the Democratic National Convention. 

Nicolae Ceauşescu: chorus of boos

Trump has form in questioning the racial or ethnic bona fides of rivals, e.g, American Indians, and his disrespect is nothing new. 

In his casino days in New Jersey, before the business failures and bankruptcies, he questioned the authenticity of native-American tribes opening casinos - not only their ethnic identity, but their colour - and expressed the view that they didn't look like Indians to him. 

For good measure, Trump added unfounded allegations of gangster influence. This from a man who was denied consideration for Darling Harbour's casino due to Mafia connections in his tawdry Atlantic City gaming facilities.

It was all rather rich coming from a shady real estate man who has admitted passing himself off as Swedish when showing property to Jewish prospects.

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How, really, did a shallow blowhard like Donald Trump ever establish a following in the United States? 

He had help, and from unexpected places. Australians are just beginning to acknowledge the lethal damage that their most toxic export - Rupert Murdoch - has done to democracy, decency, and even the general level of intelligence, in the US. 

Without Murdoch's assistance, Donald Trump might never have stumbled into the White House and his preposterous stolen election fable might never have gained traction - yet it could all happen again. 

Murdoch: Trump's Svenghali

Trump is now plotting to steal the 2024 election with Republic Party dirty tricks in swing states like Georgia and Arizona.   

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Hot after last term's appalling interference in the 2024 presidential election (Trump v Anderson and Trump v US), the supreme court is using its summer recess interim orders to meddle for Republicans in November's elections - this time in Arizona. 

The court's Republican majority has also indulged in culture-war mischief during the summer recess, blocking enforcement of an entire Biden education regulation because one small part offended "anti-trans" states; global injunctions of analogous health regulations may follow. 

The court is provisionally upholding other examples of gratuitous Republican cruelty, e.g, the 8th circuit order enjoining, on behalf of Republican states, student loan forgiveness.

Meanwhile, the awful presidential immunity case continues its baleful effects. It may impact, for instance, a state court matter, Trump's New York criminal fraud conviction, a case in which Trump could actually go to jail if he loses the election.

Republicans also want to save their candidate from financial ruin. Incredibly, the attorneys general in 15 Republican-controlled states are squandering public money to support the non-resident Donald Trump's New York State civil appeal against a $455 million fraud judgment.

In the courts of appeal, the fully-Trumped Fifth Circuit (Texas, Louisiana and Mississippi) has continued to run wild, and even the conservative supreme court had to pull them up for bad lawyering in eight of the circuit's eleven cases heard in the last term.

Even so, shocking decisions continue, including two more en banc party-line anti-voting decrees issued by the 12 Republicans (six of them Trumpistes) who now plague the 17-member court. Chris Geidner has more.

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If, notwithstanding supreme court interference, Kamala Harris takes office, she will be the 28th lawyer president. The first was George Washington's successor, the eminent advocate John Adams. 

Some of them, e.g, John Adams, Grover Cleveland, Benjamin Harrison and Martin van Buren were outstanding lawyers who argued before the supreme court, and one lawyer president, William Howard Taft, was afterwards appointed Chief Justice.

Taft wasn't the first president to be offered a place on the supreme court: in 1810, future president John Quincy Adams was offered an already-confirmed supreme court seat. Adams (then minister to Russia) declined, saying he was "too much of a partisan to be a judge". 

Supreme Court justice Chase: impeached for peddling a political agenda

Perhaps JQ Adams was thinking of the notorious 1804 impeachment trial of supreme court Justice Samuel Chase. 

Chase, the only supreme court justice ever impeached, was accused of "continually promoting his political agenda on the bench, thereby 'tending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partizan'." 

Acquitted by the senate, Chase remained on the court till his death.

 

From Roger Fitch and our friends down under at Justinian.

 

Trump v US

Roger Fitch Esq • Tuesday, July 30, 2024

Judge Aileen Cannon ... No more special prosecutors ... Rogue judges at the highest level ... Presidential immunity decision worse than anticipated ... A dreadful partisan court ... Milwaukee convention ... Vance has no conviction - unlike his running mate ... Roger Fitch files from Washington 

"FBI searches for motive in Trump shooting" - mystifying Associated Press headline.

What a great election choice! On one side, representing the party that has always claimed it stands for law and order, the candidate standing for president is a felon, the career criminal Donald Trump. On the other side, his worst nightmare, a former San Francisco public prosecutor and California AG, Kamala Harris. 

Criminal charges, however, don't faze Republicans. In Florida, a convenient trapdoor has been provided to one set of charges by a Trump-appointed federal judge. According to Aileen Cannon, the special counsel prosecuting Donald Trump was illegally appointed. 

Ignoring court precedents, the intensely ambitious Judge Cannon caught a Clarence Thomas pass and dismissed the Espionage Act case against Trump, just as Thomas had suggested in his presidential immunity concurrence. More here on the wildly ultra vires decision by Trump's rogue federal district judge. 

As Obama's former White House counsel Bob Bauer commented, if Cannon's ruling is upheld, we may never again see the likes of Archibald Cox, Leon Jaworski, Robert Mueller or Jack Smith.  

Stolen documents in Mar a Lago bathroom, with chandelier 

Cannon's decision fits neatly with the supreme court's ruling, in Trump v US, that presidents enjoy absolute immunity for "official" acts, even patently criminal ones involving murder and bribery, and are also presumed to be immune for everything unofficial.

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"The parallels between [Trump v US] and Germany's Enabling Acts …similarly ratified by the German Supreme Court right after Hitler took power in early 1933 - are startling. That collection of laws ruled that whatever Hitler said in the context of an 'official act' instantly became the law of the land. For all practical purposes, as the nation's leader, he became immune from prosecution under the laws that applied to every other normal German or elected politician." - Thom Hartmann

Although everyone is reeling from the new presidential election dynamics in the US, all eyes should still be on the US Supreme Court and a decision being called the Dred Scott of our time. 

Hitler: immune from prosecution

In perhaps the most partisan power grab in its 235-year history, the supreme court on July 1 attempted to nullify all the outstanding federal criminal litigation against Donald Trump as well as litigation under appeal in New York State and Georgia. Rather than Justice Gorsuch's promised "rule for the ages", it's a rule tailor-made for Donald Trump.

As international law professor Oona Hathaway noted in Foreign Affairs, for the rest of the world the US president has always been above the law. Now Americans themselves will learn what that means.

In a decision that will live in infamy, the court ruled that a president is, in all essential matters, above the law. That's contrary to the Constitution; Article 1, Section 3, makes clear that even a president who has been impeached and convicted remains "liable and subject to indictment, trial, judgment and punishment, according to law".

By a majority of 5-4 (Justice Barrett not joining), dicta was inserted in Trump v US that may affect multiple criminal prosecutions in several states, e.g, those involving fake electoral slates. 

The five justices opined that even the evidence of crimes that falls within the president's astonishingly-broad "official acts", e.g, contacts and phone calls between the president and others, perhaps bribery and corruption, attempted subversions of justice through corrupt contacts with department employees (e.g, Jeffrey Clark in the DoJ), intimidation of the Vice-President and the Justice Department's senior officers, pressuring Georgia officials to "find" votes, cannot be admitted in court, nor the president's motives and good faith queried.

More here on CJ Roberts' now-notorious footnote 3. 

Roberts: footnote three

The immunising of improper contacts with the Justice Department offers Trump a licence for vengeance, as envisioned by the Heritage Society's frightening, Republican-endorsed Project 2025. 

The supreme court's decision is part of a pattern, and Eric Segall thinks it's all about the election: 

"[T]he Court's fast-tracking of the disqualification case ... combined with the slow-walking of the immunity case ... had the purpose and effect of making sure Donald Trump would be on the ballot in November and that the pending criminal case against him brought by Jack Smith would not be concluded by the election but, even if it were, the case would be much, much harder to win. Those events demonstrably help the Republican Party and Donald J. Trump."

In other words, Trump v US is even worse than people think. The supreme court has attempted to kill every case against Donald Trump.

How worried should Americans be? Back in 2019 (before Trump's Espionage Act charges), former head of CIA Russian operations John Sipher concluded that Donald Trump was not a Russian agent. Though easy to recruit and manipulate, he would be beyond control: 

"His narcissism, poor memory and ego would make it ... impossible for him to follow directions and keep a secret ... He blathers about things he doesn't understand ... is loathe to admit mistakes, lies constantly and is barely intelligible ..."

In the light of Trump v US, however, Sipher sees a new and different national security threat: a president who might direct the CIA or a mercenary to engage in illegal activities, and then order that the CIA director not brief Congress on such activities. 

The question now presented: if the supreme court has actually authorised Donald Trump to order his rival killed by Seal Team Six, is the military entitled to disobey that order? 

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It's been a horrible supreme court term all around, and it's impossible to overstate the damage it has done.  While amplifying presidential power, the court has kneecapped federal agencies.

The demise of "Chevron deference" will bring the most ominous changes to administrative law. 

Conservative Catholics on the US Supreme Court: shameless partisans

As David Dow notes, "[N]ow that Chevron has been overruled by Loper Bright Enterprises v Raimondo, federal courts will no longer defer to scientists or experts when it comes to interpreting ambiguous statutes. The anti-intellectualism in American life that the political scientist Richard Hofstadter identified in 1963 has taken over the judicial branch." 

Lawrence Tribe has more on the shameless partisan hackery of the court; Chris Geidner believes the Supreme Court Six have signalled they will consider anything. 

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In Wisconsin, the credulous ninnies and cult-worshippers who underpin today's Republican Party staged its quadrennial freak show (convention) to anoint a presidential candidate. Their reward was a 90-minute acceptance speech containing a torrent of lies. 

Meeting in the once-socialist citadel of Milwaukee, the delegates, some cranks, some under indictment themselves, chose a convicted felon as their presidential candidate, along with a running mate who once compared his leader to Hitler.

As Kentucky's Governor Andy Beshear quipped, "The problem with JD Vance is, he has no conviction. But ... his running mate has 34."

FROM ROGER FITCH AND OUR FRIENDS DOWN UNDER

 

Reign of Terror

ROGER FITCH ESQ • FRIDAY, JULY 5, 2024

SCOTUS ... Shocker decisions from the latest term ... The Trump Docket ... Presidential immunity ... Gratuities and bribes ... Obstruction ... Admin law trashed ... Criminalising the homeless ... Espionage Act - two sides of the coin for Assange and Trump ... At last, someone convicted at Guantánamo of a real war crime ... Roger Fitch reports from Washington 

"Somewhere along his life path, his Saurian eye identified a need among a swath of Americans for nonsensical gibberish … In another era, Trump's true calling in life would be a travelling tentpole circus barker, hustling from town to town with an entourage of snake oil salesmen, other grifters, and assorted freakish animal and humanoid curiosities... that's entertainment, and as ever, it serves a nefarious purpose - diverting the crowd from the pickpockets" - Nina Burleigh

Reign of terror: The SCOTUS Six

Pickpockets still abound, some now legally-trained. The most successful work for the Federalist Society. Launched in 1982 by rightwing lawyers and their corporate masters, the well-funded Society soon gained entrée into judicial appointment consultations under Republican presidents, displacing the despised establishment American Bar Association.

Their breakthrough came when a Republican Senate colluded with Donald Trump to appoint 234 Federalist Society-approved judges. The appointment of three of them to the supreme court gave the Federalist lawyers near-control of the court.

During the Reign of Terror, "Twelve Who Ruled" meant the revolutionary Comité de salut public, six of whom were lawyers. Perhaps "Six Who Would Rule" describes the Six "Republicans" (irony intended) now bludgeoning laws and the Constitution itself in their quest for governments tilted to corporations, Christian nationalism and cultural revisionism.

On the last day of its October term, The Six announced an astonishing decision, one of the worst in the court's 235-year history. In this decision of recklessness and folly, the principal beneficiary has been the convicted felon Donald Trump. More here. 

The Six gave the president unlimited powers to commit crimes (including murder), perhaps assuming that, in light of successful voter disenfranchisement, no Democrat will in future succeed in becoming king (sorry, president).

Maybe just to protect themselves, in the closing days of its term, the court decided Snyder v US (more here), purporting to distinguish "gratuities" from "bribes" in ways tailor-made to exonerate two of the court's own members, who have received "gratuities" totalling millions of dollars. Law Prof Eric Segall sees supreme corruption.

Fischer v US concerned the January 6 prosecutions in Washington, including Trump's. Of the 19-odd DC District Court judges who have been hearing these cases, all but one (a Trump appointee) found that 18 USC 1512, adopted in the wake of the Enron accounting scandal, applied to some acts of the Capitol rioters. 

In Fischer, the court ruled that Section 1512(c)(2), corruptly obstructing an official proceeding, did not apply outside the context of impairing evidence, and thus was inapplicable to rioters disrupting the Senate's Electoral Count. January 6 convictions won't, however, be greatly affected. 

The longstanding "Chevron deference" for regulatory decisions of administrative agencies is gone, thanks to Loper v Raimondo. Scotusblog has more. In a parallel move against prevailing administrative law, SEC v Jarkesy, the court struck out an SEC administrative court established under the 2010 Dodd-Frank Act, because it denied defendants a jury trial on civilian fines. This could affect other administrative courts, e.g, the NLRB.

In the Grants Pass case, Justice Gorsuch wrote a cold and horrifying opinion allowing an Oregon City's  criminalisation of "public camping" as applied to the homeless. 

Gorsuch: horrifying

The court also continued to unwind environmental protections this term. 

Here's a rundown on the damage done by what's being called the Trump Docket.

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The Justice Department has filed two contentious espionage cases in recent years. One, against an Australian citizen, is novel, an actual Trumped-up crime. The other, filed by a special counsel appointed under President Biden, is against Trump himself. 

Unlike Julian Assange's "offences", the charges against Donald Trump fit perfectly: it's a straightforward prosecution for wilfully and knowingly taking and concealing classified documents, misusing them and obstructing their retrieval. 

The Espionage Act, 18 USC 793, used in both prosecutions, does not say the accused must be working with another country to deliberately harm the US, only that it is a crime to have ...

"... unauthorized possession of, access to, or control over [information] ... the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation," and to wilfully retain it while failing "to deliver it to the officer or employee of the United States entitled to receive it."

Prosecutors are not required to prove that the defendant knew the information could harm "national security", only that any reasonable person would understand the harm it could do. It's not necessary to prove actual damage or even that the documents were classified, only that they relate to US national security.

The Espionage Act was first enacted in 1917 during WWI and was initially used quite oppressively. Modern prosecutions, however, have typically been of spies and careless public or former public officials, and recently, whistleblowers.

Until Julian Assange, the Act was never used against a journalist, and Obama declined to use it against the Australian. In fact, Obama commuted the sentence of Assange's alleged co-conspirator, convicted of leaking the same information. 

Nevertheless, the experiences of Assange and Trump have greatly diverged. Whereas Julian Assange was harassed and persecuted for years before indictment, Donald Trump luckily landed in the court of a judge he appointed, Aileen Cannon, who appears to be auditioning for Trump's next supreme court vacancy.

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Assange: might have beaten the Espionage rap

The conviction of a journalist under the Espionage Act was only certain with a guilty plea; it's not clear the charges would have been upheld in a US court had extradition proceeded. Like Guantánamo, only the use of plea deals with no appeal allows legally-dubious charges to stand. 

In fact, the similarity of the Assange and David Hicks prosecutions is striking. Applying the Espionage Act to Assange's journalism is reminiscent of David Hicks' "war crime" conviction for the invented (later invalidated) "material support for terrorism". 

Sadly, the Pentagon continues its attempts, through guilty pleas, to convert civilian offences (terrorism and conspiracy) into "war" crimes: US-created offences unknown to international huminatarian law and thus not part of the "law of nations" as required by the US Constitution. The inchoate offence of "conspiracy" is one such. 

In 2014, a military commission charged Abd al-Hadi with various charges and in June 2024 accepted his guilty plea for certain ones, including "conspiracy". Al-Hadi did commit war crimes in an international conflict, and he's accountable for those recognised under IHL, but not for the American-concocted "conspiracy".

Al-Hadi's lawyers managed to strip out of his guilty plea all charges except three valid ones: treachery or perfidy; attacking protected property; and attacking civilian objects, plus the invalid conspiracy. 

Meanwhile, Al-Hadi has made history: he seems to be the only person ever convicted at Guantánamo for committing actual, internationally-recognised war crimes that occurred during an international conflict involving the US.