Dark and Stormy times in the US of A
The MAGA Supreme Court ... Conservative judges flirt with absolute presidential immunity ... A reconfigured Constitution ... Trump's intimidation of witnesses and jurors in NY election fraud case ... Jury deadlocked in Abu Ghraib torture case ... Roger Fitch's letter from Washington
"We told ourselves that at least six justices, and maybe even seven ... would still want to ensure that this November's elections would not be the last in history. Political hacks they may be, but they were not lawless ones.
"... during oral arguments in Trump v. United States, the Republican-appointed justices shattered those illusions ... These justices donned the attitude of cynical partisans, repeatedly lending legitimacy to the former president's outrageous claims of immunity from criminal prosecution. To at least five of the conservatives, the real threat to democracy wasn't Trump's attempt to overturn the election - but the Justice Department's efforts to prosecute him for the act.
"These justices fear that it is Trump's prosecution for election subversion that will 'destabilize' democracy, requiring them to read a brand-new principle of presidential immunity into a Constitution that guarantees nothing of the sort.
"They evinced virtually no concern for our ability to continue holding free and fair elections that culminate in a peaceful transfer of power. They instead offered endless solicitude for the former president who fought that transfer of power." - Slate.
"The conservative justices' argument for immunity assumes that Jack Smith's prosecution of Trump is politically corrupt and seeks a rule that would prevent future presidents from corruptly prosecuting their predecessors ... such a rule would license all future presidents to commit crimes against the United States while in office with impunity ..." - Michael Luttig.
"[T]his Court is not just a conservative Court, or a Federalist Society Court, or even a Republican Court - it is becoming a MAGA Court" - Michael Waldman.
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US Supreme Court: on track to botch the presidential immunity case (sketch artist Politico)
Historians agree: Donald Trump was the worst or near-worst president in US history. That Trump will surpass himself in venality, villainy and incompetence if again elected is so certain that foreign leaders and Democrats alike are working feverishly to insulate the world from his possible return. Democracy hangs in the balance, and authoritarianism beckons.
By contrast, the supreme court, reinforced by three Trump appointees, seems unconcerned. Trump's farcical claims to absolute immunity for presidential actions were respectfully received when Trump v US was argued April 25.
The merits brief of Special Counsel Jack Smith, and amicus briefs of four-star military leaders and eminent historians, were ignored by the court's conservatives.
Will the court botch its immunity decision? After oral arguments, it seems very likely. Michael Dorf listed the hearing's lowlights, while Lawfare focused on what the justices asked. Others commenting: CNN's Joan Biskupic and Scotusblog's Amy Howe and Mark Walsh.
The conservative judges studiously avoided references to Donald Trump and January 6, disingenuously claiming they were only interested in the abstract theory that requiring a sitting president to be subject to criminal law might have some effect on future presidents, i.e, punishing the first might chill the others.
Justice Alito nonsensically argued that allowing ordinary criminal law to apply to a president might, far from punishing bad behaviour of a sitting president, encourage him to commit even more crimes in order to cling to power.
Kavanaugh and Gorsuch raised an argument forfeited in the lower courts: that a criminal law doesn't apply to a president unless the statute clearly says so (only a handful do).
Trump judges: Gorsuch and Kavanaugh
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Three days before the supreme court heard Trump v US, People of New York v Trump began, marking the first criminal trial of any US president. Lawfare and Just Security have primers on the legal theory behind the case.
In their pleadings and arguments, defence lawyers persistently call their client "President" Trump; surely, if Citoyen Capet sufficed for Louis XVI, plain "Mister" should do for an ex-president.
The prosecution filed a witness list, and described previous Trump transgressions that it intends to use to impeach his testimony if he takes the stand.
As in the Carroll defamation cases that preceded it, "gag orders" have been placed on the defendant, designed to deter his threats and intimidation against prospective jurors and likely prosecution witnesses - it's an essential ingredient in any trial of the lawless scofflaw Donald Trump.
Even before the trial started, the defendant began flagrantly violating the court's gag orders, and he has already been fined (order). His violations outpace the court's capacity to consider them, but aside from jail, what will deter Trump? One (chastening) suggestion: picking-up trash on a community service order.
Fittingly, "trash collector" is how the Washington Monthly characterised the prosecution witness David Pecker, former publisher of the scurrilous National Enquirer.
In the lead-up to the 2016 election, Trump gave Pecker's paper the task of "catching and killing" stories deemed damaging to the candidate, e.g, that of his relationships with the porn star Stormy Daniels and other high-priced "models".
It worked; on election night, Stormy's abashed attorney emailed the Enquirer editor, "What have we done?".
Ironically, Trump's craving for publicity in trashy tabloids betrays manners and taste that bar him from New York society; there, he'll never be more than an "elite aspirant".
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Bush: limitations
George Bush had to be "re-elected" in 2004, to run out limitations on his first term's crimes before another government could prosecute them.
He needn't have worried. Barack Obama let all the criminal limitations run, even the five-year ones. Obama's AG also obstructed most civil cases against companies who colluded in CIA crimes, e.g, Mohamed v Jeppesen Dataplan, the Boeing subsidiary that organised rendition flights for the torture program.
A few civil cases e.g, against the CIA contract psychologists who designed the torture regime, and the Pentagon's prison-based contractors, survived, as "state secrets" was not asserted. These cases were allowed to proceed to civil adjudication.
Two of the contractor cases sprang from the Abu Ghraib torture scandal, a story that broke exactly 20 years ago.
CACI International, who provided prison interrogators, and the Titan Corporation, who provided interpreters, were outed in 2004. In 2008, the Center for Constitutional Rights brought suit against both companies on behalf of affected prisoners.
The two companies vigorously fought the cases, claiming the Pentagon was responsible and the contracts conferred immunity.
In 2013, Titan (now L3 Technologies) settled for $5 million, but CACI fought on, in Al Shimari et al v CACI, claiming the Alien Tort Statute didn't apply.
Judge Leonie Brinkema denied multiple dismissal motions, and late last year ruled the case could proceed. CCR has the background.
The case began in Virginia federal court on April 15. Although the evidence was damning, the case received little media notice - the trial date was the same as that originally set for Trump's NY fraud case. There was, however, reporting by Voice of Indonesia, Al Jazeera, the Guardian and LA Times.
The jury deadlocked after eight days' deliberation, and sadly, the case ended in a mistrial.
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