From Roger Fitch and our friends down under at Justinian

 

Our man in Washington

ROGER FITCH ESQ • TUESDAY, APRIL 27, 2021

Biden moves well to the left of Obama and the Clintons ... Attorney General Merrick Garland starts repair job at the Department of Justice ... Weeding out the Trump "burrowers" ... Implications for Guantánamo "war prisoners" in light of Afghanistan withdrawal ... Republicans push ahead with electoral rorts ... More Trump corruption emerging ... Roger Fitch's letter from America  

Occasionally, participants in history see the error of their ways: the supreme court justice who provided a decisive vote in Bush v Gore; the speaker of the house who facilitated the baseless Clinton impeachment.

For some, recognition of past error has not come too late. Joseph Biden has seen the light, and unlike Sandra Day O'Connor and John Boehner, he's in a position to do something about it; different from his predecessor Barack Obama, he seems to have the desire and courage to act.

Always considered right-of-centre, the new president is positioning himself well to the left of Obama and the Clintons. The new backbone and activism have delighted the Bernie Sanders wing of the party, and foreign observers, too. 

Most members of Biden's cabinet have now been confirmed, many with bipartisan support. None of them qualify as foxes; instead, they are mending and guarding the henhouses.

There's a decent, highly-qualified attorney general, appeals judge Merrick Garland, confirmed five years to the day that he was appointed by Obama to the supreme court, yet refused a hearing by the then Senate Majority Leader Mitch McConnell.

Can Garland repair the Justice Department? A good start was his reinstatement of consent decrees with errant police departments, scrapped by Trump to gratify the only significant union that supported him: the police.  Much more could be done, e.g, rescinding Office of Legal Counsel memos that purport to immunise a president from criminal liability: it's not in the constitution or US laws.

Civil rights, undermined or sabotaged by Donald Trump, are to be enforced and protected, and corporate crime prosecuted. Antitrust enforcement could be resumed. 

The senate judiciary committee has asked Garland to trace and report on destructive holdovers at Justice, Trump "burrowers" who converted political appointments to civil service positions as Trump departed. His "leftovers" are also a problem in other departments. 

Garland: rooting out the Trumpist holdovers

An experienced diplomat, Antony Blinken, is secretary of state, a clear improvement over Trump's wrecking-ball foreign secretary, Mike Pompeo, the subject of a damning new departmental IG ethics review. Already, the shameful sanctions imposed against witnesses and investigators for the International Criminal Court have been revoked. 

Climate and other science, banished by Trump, have been reintroduced, and scientific facts restored to government websites; Trump's [bad] advice panels have been replaced.

There will be an Environmental Protection Administrator who believes in protecting the environment.

Trump's Big Oil-orchestrated ban on improved emission standards will be undone by the Transportation Department, while the FDA plans to take lead, arsenic and other horrifying contaminants out of the environment, instead of maintaining or increasing them, as Trump's perverse regulations often did.

At the Labour Department there will be, instead of an implacable foe from an anti-labour law firm, a secretary who believes in enforcing labour laws and supporting organised workers. 

A revitalised Federal Trade Commission is seeking legislative authority for expanding rather than limiting consumer remedies. 

*   *   *

Biden's litigation posture in pending legal proceedings commenced during Trump's term has been much more progressive than Obama's when he took office (see Fitch, Feb. 24, 2009). Obama accepted and pursued Bush arguments that suited him (e.g, for the accumulation of executive powers), but Biden has altered the government's position in many pending cases. Some major lawsuits remain to be sorted.

Biden's administration has nevertheless availed itself of some harmful rules and regs from the Trump era, and needlessly appealed the Julian Assange extradition that was denied in Britain. 

The Pentagon has announced new military commission charges, against Hambali, a terrorist with no connection to any war, or the US, other than American Bali-bombing victims - far fewer than the Australians affected. 

Biden's Guantánamo litigation strategy complicates senior senators' efforts to close the prison; their arguments, however, assume the continuance of military prosecutions, only one of which truly involves a war-time war crime: that of Abd Al Hadi.

In theory, the promised official end to the war in Afghanistan should bar US claims that the men are detained as "war prisoners". Much depends on Guantánamo appeals headed for (likely unsympathetic) supreme court review.

*   *   *

Republicans aim to fix the results after an election

As electoral redistricting looms, the demographically-doomed Republicans no longer conceal their aversion to democratic elections, i.e, majority rule, relying instead on egregious gerrymanders.

The decennial US Census counts the whole population, enabling the drawing of congressional and other voting districts. State legislatures control and determine the districting. If they fail to do so, courts may step in to draw the revised districts, but in Rucho v Common Cause (2019), the supreme court ruled that a legislature's partisan (as opposed to race-based) gerrymander is a non-justiciable political question.

Trump failed in his effort to produce a 2020 census based solely on citizenship (rather than the 14th Amendment's "whole number of persons"), but the delay in census data, only released this week, caused new problems. 

Selectively suppressing votes - choosing voters - remains the key Republican policy, and it's entering a dangerous new phase where the objective is subverting undesired results after the election. A recent independent report catalogues the state manoeuvres.

The Democrat congress has introduced proposed new voting standards for federal elections (more here), but  presently voting parameters are set in individual states, most of which lack independent redistricting bodies. 

The most radical Republicans remain those in the Republican statehouses, e.g, Georgia, where it's now a crime to provide food or water to the weary forced to queue for hours to vote; it's all part of a suite of cruel and mean-spirited new laws in party-controlled states.

In eight of these states, Republicans are asserting new political powers over the voting, seeking to undo the legal safeguards that restrained Donald Trump from stealing the election. 

Some of the Bills strip independent elections officials of their power to enforce the acts they administer, and give politicians the ultimate control. Georgia Republicans, smarting from the loss of two US senators, have passed one of the most outrageous of these laws, one that removes the popularly-elected state elections administrator from the elections board, and allows the party's legislators to overrule disfavoured decisions of that body, e.g, the certified, objective results of the election.

There's more comment here and here.  

Beyond the dominance of Republicans in state legislatures lies the obstacle of a partisan supermajority of Republicans on the supreme court. 

*   *   *

More details of the crimes and defalcations of Trump's appointees are soon to come out with the release of previously-quashed reports by departmental inspectors general. 

More Trump corruption is coming to light, and he faces lawsuits on numerous fronts (here's the latest litigation tracker). Surprisingly, his position on the Forbes rich list fell 300 places during his term, despite his extraordinary efforts to enrich himself. 

From Roger Fitch and our friends down under at Justinian

 

 A smoking ruin

ROGER FITCH ESQ • TUESDAY, FEBRUARY 2, 2021

Republicans cling to Trump ... A short history of white supremacists and electoral disruption ... Neo-Confederates on the march ... Trafficking in pardons and associated sleaze ... Roger Fitch in Washington on Trump's grotesque legacy 

"The sacking of the Capitol is proof positive that what we thought was dangerous is indeed very much so. Those outlets that propagate lies to their audience have unleashed insidious and uncontrollable forces that will be with us for years ..." -  James Murdoch

It appears the twice-impeached Donald Trump will escape conviction for insurrection. The senate, even in Democrat hands, will acquit him again.

He clung to power as much to avoid jail as to maintain hustles, and now he faces civil and criminal prosecutions. He's earned it, and Ivanka, too. More here and here.

Republicans have meanwhile learned nothing from the election and its aftermath. Party officials continue to embrace their disgraced leader, especially in states they control and he lost.

Georgia, the state with the best case for prosecuting Trump, plans new voter restrictions; in Michigan, Republicans replaced the party official who joined the state Democrats in certifying the election.

In Arizona, a proposed Bill would allow legislators to replace popularly-chosen electors with those of their own choosing; in Pennsylvania, the legislature plans to punish elected supreme court justices who certified the result (Republicans, too) by forcing them into individual, heavily-gerrymandered districts.

The neo-Confederates triumphed, and Trump survives as a kind of antipope. The plan for minority rule continues: the playbook is the 2018 Wisconsin state elections, where the party lost the popular vote, but kept control of the state through stacked courts and partisan gerrymanders. 

*   *   *

Blackshirts march on Rome - 1922

"History doesn't repeat itself, but it often rhymes" - Mark Twain

Lincoln's 1861 inauguration was threatened by violent white supremacists not unlike this year's mob, and an impeached president refused to attend Grant's 1869 inauguration. This year's break-in mimicked the 1898 Wilmington Coup as well as the 1954 attack on congress.

As for the ousted president, his behaviour on January 6th paralleled Mussolini's in his 1922 March on Rome, when Il Duce accompanied foot-weary fascists on a first class train. 

This year, Trump sent a mob towards the Capitol, promising to accompany them, then returned by limousine to the White House to watch the ensuing chaos on TV, too absorbed in the drama to answer calls for assistance. 

Mr Trump was reportedly "bemused" by the "spectacle", but found the rioters "low-class". 

Imagine being called lower-class by Donald Trump. 

There's evidence the Capitol break-in was planned (more here and here) and the FBI had warned there would be "war". 

In the event, the attack was poorly-executed. The rioters posted foolish trophy videos on websites like Parler, and the photos and metadata enabled identification of many of the 400 under investigation. 800+ stormed the Capitol, guided by Proud Boys and Oath Keepers.

There's more at ProPublica and a timeline here; TPM and the Times have long reads on the months of scheming that led to the attack. One pro-Trump forum is already scrubbing the evidence. 

"Low class" Capitol invader

It seemed to some a redneck revival, a white trash liberation movement with a Confederate battle flag as standard and MAGA hats as the uniting and distinguishing symbol: people that the US class system used to sort-out. 

No longer. Racist thugs, fake patriots and the religiously-deluded now get a pass. 

The insurrectionary rabble comprised more than ignorant buffoons and the usual hate-group suspects. It provided cover for real villains: rogue police, Army reservists, and serving and retired soldiers (including with sniper training). About 20% of those charged had military training.

The attacking mob also contained a lawless lawyer, a disturbed doctor and intruders who knew the capitol layout, e.g, the woman who stole Nancy Pelosi's laptop with a view to selling it to the Russians. 

Indeed, there's evidence that "foreign actors" may have helped fund the rally-riot, in addition to shell companies and dark money connected to, well, Donald Trump. Was it all an autogolpe?

Incredibly, the rally that set-off the Capitol assault was promoted by the Republican Attorneys General Association, proof of the bad lawyering in Republican circles. 

The insurgents may have had inside help (more here), e.g, from Congresswoman Lauren Boebert of Colorado; there was suspicious reconnaissance inside the Capitol on the day before the attack. Boebert is one of congress's two QAnon supporters (the other: barking-mad Georgian Marjorie Taylor Greene).

Even saner members of congress are in legal peril, if they conspired with the Capitol attackers: some congressional ties to extremists are under scrutiny.

*   *   *

"People who say Trump has no empathy are wrong. He has the utmost empathy for degenerate, corrupt, disgraced politicians who perhaps remind him of himself" - Preet Bharara, former Manhattan US Attorney.

Trump's last days offered his venal band a final feeding opportunity, and enterprising mates like Rudolph Giuliani offered themselves as brokers in the business of pardon-trafficking.

On the morning of January 20th, the outgoing president issued 143 pardons and commutations, many as sleazy as expected (more here), including crooked Republican politicians and the odd bent Democrat, e.g, the former mayor of Detroit, Kwame Kilpatrick; Trump had previously commuted the sentence of Rod Blagojevich, the Democrat governor of Illinois serving time for trying to sell Barack Obama's senate seat.

Prosecutors were outraged: pardons included commutation of sentences and foregone restitution in Medicare rort convictions that took years to obtain.

Can pardons be undone? Sometimes. President Biden might have tried to recall pardons not yet accepted, from January 20th. In any case, given Trump's incompetence, some of his pardons may turn out to be ineffective.  

*   *   *

Broke everything he touched

Donald Trump's legacy? Unfettered corruption; contempt for law; and power abused with impunity. 

Through his actions and those of his endless parade of bottom-drawer hirelings, a unique chapter was written in American history. He made war on truth and civility while irreparably coarsening political discourse. He glorified selfishness, greed and gratuitous cruelty. 

If nothing else, he proved that one man, even badly-damaged, can make a difference. For four years, he broke everything he touched. Though defeated in a fair fight, he continued to incite violence and plot sedition; even in his last hours in office, he encouraged mean-spirited harm to others. 

But as a New Republic writer observed: 

"... cruelty and contempt are not just the essential ingredients of Trumpism but exactly what Republican voters hunger for. They don't want deregulation, or a lower marginal tax rate, or even The Wall. What they want is the liberation to talk freely about the people they hate." 

The smashed traditions and American decline are likely to endure. There are dire predictions of an American abyss, a pre-fascist opposition in a Weimar era.

Still, Trump was good for Democrats, turning Virginia "red to purple to blue", adding Democratic Senators from both Georgia and Arizona, and "turning various state-level Democrats into national stars". 

And flipping both houses of congress. 

From Roger Fitch and my friends down under at Justinian

 

Madcap election litigation spree

ROGER FITCH ESQ • SUNDAY, JANUARY 10, 2021

Republican lawyers wreaking damage to the legal profession and rule of law ... President Trump and the violation of federal laws on electoral interference and extortion ... Late impeachment in the wind ... Rioters seeking martydom ... Whither the republic? ... Roger Fitch reports from a wounded Washington  

"Plaintiffs' aims in this election challenge are bold indeed: they ask this Court to declare unconstitutional several decades-old federal statutes governing the appointment of electors and the counting of electoral votes for President of the United States; to invalidate multiple state statutes regulating the certification of Presidential votes; to ignore certain Supreme Court decisions; and, the coup de grace, to enjoin the U.S. Congress from counting the electoral votes on January 6, 2021, and declaring Joseph R. Biden the next President ... In addition to being filed on behalf of Plaintiffs without standing and (at least as to the state Defendants) in the wrong court ... the suit rests on a fundamental and obvious misreading of the Constitution. It would be risible were its target not so grave: the undermining of a democratic election for President of the United States. The Court will deny the Motion."  - District Judge James E Boasberg.

"Unlike the [French] National Assembly circa 1789, Trump's bogus electors are not even the rump of a lawful body. The Trump electors are more like the 'soviets' - workers' councils that played a role in the 1905 and 1917 Russian Revolutions despite initially having no legal claim to political power ... Will the Trump soviets succeed? That is likely a bridge too far even for the majority of House Republicans who signed an amicus brief to the Supreme Court in last week's preposterous original jurisdiction case." - Michael Dorf, underestimating the treachery of the Republican representatives in congress.

"You have sat too long for any good you have been doing lately ... Depart, I say; and let us have done with you. In the name of God, go!" - Oliver Cromwell.

Oliver Cromwell broke-up a refractory parliament personally; Donald Trump used surrogates to break-in. 

On January 6th, the 117th Congress was meeting to count the votes cast in the election. The president couldn't allow that: he'd lost. With his prompting and encouragement, an unruly mob of Trumpenvolk (some armed) attacked Capitol Hill. 

Overwhelming a sometimes sympathetic capitol police, they climbed the barriers and broke into the building, swarming through congressional halls and into the very chambers where the hated electoral count was occurring. Witnessed live on television, the attack was quickly condemned as a riot and a Putsch. Five people died, including a policeman.

The capitol police were unprepared, yet such violence was predictable: in 1954, Puerto Rico nationalists opened fire in the house, injuring five representatives. 

The president may have already violated federal statutes on election interference and extortion, and state laws for which he cannot be pardoned; he's now added sedition. "Late impeachment" and disqualification from office under the 14th amendment "insurrection clause" are possibilities.

•   •   •

Pursuant to the Constitution's Article II, Section 1, the new congress was meeting, as it has done every four years since the 18th century, to count and certify electoral votes for president and vice president previously certified by the states. It's usually straightforward, but the Electoral Count Act of 1887 offered the 2020 losers a chance to challenge electors from selected states.

A dirty dozen of Republican senators were set to oppose electors, but following the riot, the revolutionary gang lost strength; only six opposed Arizona's electors and seven, Pennsylvania's. In the house, 121 (of 211) opposed Arizona's electors; 138 opposed Pennsylvania's, where the state's highest court had confirmed the result.  

Altogether, 147 Republicans voted to overturn the election results, which were successfully affirmed.

Happily, the Democrats still have a majority in the house, and on the eve of the break-in they gained a senate majority through a Georgia special election for two senators. It wasn't cheap; it cost over $800 million to elect the new senators, Raphael Warnock, and the half-Australian Jon Ossoff.

•   •   •

Trump: mentally unmoored

America has had many bad presidents, even corrupt and evil ones, yet surely, Donald Trump is the first one undeniably mentally-unstable. Thus there was a certain symmetry when, during his last two weeks as president, as in his first week, his removal from office under the 25th Amendment was discussed.

Unlike Richard Nixon, this disgraced president doesn't drink, but his unpredictable behaviour remains a concern in his remaining weeks in office: House Speaker Nancy Pelosi worries about nuclear codes, and all ten former Secretaries of Defence have warned him off involving the military in any election dispute.

•   •   •

 

As America prepares to inaugurate a lawyer president, it's time to reflect on the 32 lawyers - all men - among the shameful cohort of 126 House Republicans who supported the Texas Attorney General Ken Paxton (under indictment himself) in his failed attempt to overthrow the election in the supreme court.

The AGs of the four defendant states, all with Republican legislatures, forcefully responded to the disgraceful supreme court litigation brought by the attorneys general in 18 other Republican states.

Above the Law catalogued the craziest things in the Texas AG's nutty lawsuit, where even fake states filed a brief. All the motions from 26 other parties were dismissed as moot when the Texas motion was denied. The Post identified the various villains who pleaded.

Ultimately, nearly 90 judges rejected the claims of election fraud brought by Trump and his followers. Nevertheless, the litigation strategies and public statements of Trump's lawyers exposed the collateral damage his refusal to acknowledge the rule of law has caused to the legal profession itself. 

In many of the federal cases (certainly, the supreme court stunt), Republican lawyers may have violated Rule 11, Federal Rules of Civil Procedure. That's the rule that forbids frivolous proceedings and requires attorneys to shun litigation without legal foundation or valid evidence. 

The fact that the chief legal officers of 18 states were prepared to risk violating Rule 11 is a professional scandal. Sanctions and even disbarment should be an option.

Civilian lawyers behind the Republicans' spurious and bad-faith court actions in multiple jurisdictions should also face disciplinary action. One such action was a last-hour lawsuit against the Vice President in his capacity of Senate President. 

Gohmert: among the dimmest of Republican representatives 

It was brought by Representative Louis Gohmert, who's often described as "the most offensive and ignorant person in congress". The case was speedily dismissed by a Trump-appointed judge. 

Finally, Trump voters in Wisconsin, Pennsylvania, Georgia, Michigan, and Arizona sued Vice President Pence; both houses of Congress; and even the Electoral College itself, seeking to preliminarily enjoin the counting of electors certified by their states. Their motion was denied in scathing terms by the DC judge, who added:

"… at the conclusion of this litigation, the Court will determine whether to issue an order to show cause why this matter should not be referred to its Committee on Grievances for potential discipline of Plaintiffs' counsel."  

From Roger Fitch and our friends down under at Justinian...

 

Last days of Nero

ROGER FITCH ESQ • FRIDAY, DECEMBER 11, 2020

Pardon me ... Trump's Dolchstosslegende ... Republicans' strong electoral showing down ballot ... Tejano vote ... Victory for Koch candidates ... Census case in Supreme Court ... The wreckage continues ... Oil leases in Alaska ... Last minute federal executions ... Roger Fitch, our man in Washington, reports 

"... in all of Anglo-American history, no monarch, royal governor, president, or other executive officer has tried to pardon himself ... the idea of a self-pardon is so antithetical to the constitutional structures of England and the United States ... that no one has ever had the effrontery to try it" - Just Security

"A self-pardon would be the ultimate act of constitutional onanism for a narcissistic President" - historian quoted in the New Yorker

•   •   •

It was a near-run thing. The attempted coup failed, but democracy got a scare.

"Shameless" has lost all meaning under Donald Trump, but many were still shocked by the loser's clumsy efforts to corrupt Republicans among Michigan's official election canvassers (they ultimately confirmed Biden's win). Georgia's governor rebuffed a seditious request that he call a special legislative session to overturn the state's popular vote, and subversive appeals to Republican legislators in Pennsylvania also failed.

Even after the last two states whose votes Trump contested had approved electors supporting Biden, far-fetched lawsuits continued, but on December 9, the safe harbour deadline for submitting electors passed. A last-minute supreme court appeal failed, but disgraced Texas AG Ken Paxton filed an absurd "motion" invoking the court's original jurisdiction.

Paxton, who's awaiting trial for securities fraud, was joined on cue and at public expense by Republican AGs of 17 states, a sign of how desperate Republicans are to annul a fair but uncongenial election result. 

Within days, the supreme court summarily threw out the case. What did Texas AG Paxton hope to get out of it? Perhaps a pardon by Trump for possible federal crimes, but that won't help him with the state felony charges.

Trump's four-year demolition derby, his dismantling of America's political system, is ending - capped by an election more outrageous than the infamous 1876 presidential election (more here), and there was fraud: Donald Trump's.

Aside from possible pardons, what's left is a final money-raising hustle, a grift by the greedy president, fleecing his credulous followers on his way out.  

•   •   •

The dolchstosslegende conspiracy 

While many felt Schadenfreude in Trump's humiliation, Der Spiegel called it the end of a Spuk: a nightmare/haunting.  

There's another German noun going around: Dolchstosslegende. The history-ignorant Trump has contrived a stab-in-the-back conspiracy with an uncanny resemblance to the one concocted by anti-Semites and others after Germany's1918 defeat: the supposedly traitorous surrender to the Allies by "November-criminals" in the German government.

It took the Nazis 15-years to cash in on their back-stab myth, but the Trumpist timeframe is much shorter. As Politico put it:

"Like the German military who saw the Spanish Civil War as a testing ground for the Luftwaffe, the GOP may come to see 2020 as the election that illuminated the path to seizing power over the will of American voters."

•   •   •

US election: queuing to vote

At least the election set a record for citizen participation, perhaps because of less dependence on in-person voting, where poll locations, opening hours, conditions of access and other variables can be manipulated. The Covid-based expansion of absentee and postal voting resulted in a turnout of 160 million - the highest in American history. 

Full US voter suffrage was achieved after the 19th Amendment (1920) enfranchised women in 30 hold-out states, and the 26th Amendment (1971) lowered the voting age to 18; since 1976, voter turnout in presidential elections has fluctuated from about 50%-58%. This year, 66.7% of the voting-age population participated, and both presidential candidates received more votes than any before them, Biden getting seven million more than Trump.

Yet the Democrats suffered crushing and unexpected losses for other elective offices in states Biden won. Winning down-ballot, Republicans increased their hold on the states that will redraw legislative districts following the 2020 census, districts they are free to politically gerrymander thanks to the supreme court's partisan 2019 Rucho decision.   

Already, the Republicans' state-based advantage allows them to design 188 of the 435 congressional districts, compared to the 73 drawn by Democrats, who consistently win the overall popular vote in congress.  

Republicans took additional seats off incumbent Democrats this year, and surprisingly, with minority and women candidates. 82% of Koch-candidates were elected, as the malign influence of Charles Koch, the billionaire investor in politicians, was felt. 

A disappointment for Democrats was the soft Latino support, particularly the collapse of the Tejano vote. Historically, even the dead vote Democrat in majority-Hispanic counties along the Rio Grande, and Texas Democrats were shocked when Republicans won some places for the first time in a hundred years. 

Trump peeled off the Tejano vote while losing the state's broader Latino vote, and he's forging ahead with his cynical census scheme to disempower Latinos by reducing their representation in congress. 

The census case just arrived in the supreme court, and at argument, the majority seemed unimpressed by the government's counter-interpretation of the Constitutional's plain requirement that "people", not "citizens", be counted.

•   •   •

Looking for oil leases in the Arctic National Wildlife Refuge

Whatever Joe Biden's faults may be, a sentient human being will be in charge: no more incoherent rants and malignant Tweets. Puerto Rico won't be swapped for Greenland. There will be peace with Denmark.

The US will soon have secretaries of education and interior who believe in public education and public lands, and a CIA director who's not a former torture-camp commandant. The Voice of America won't become Trump's voice, and the attorney general won't function as the president's personal attorney. Immigration courts may be independent again, and the FCC, FDA and Agriculture Department won't belong to the industries they purport to regulate.

While he remains, the lame-duck president is continuing the wanton damage he's inflicted on the US for the last four years, e.g, weakening environment and worker protections (more here), and overturning civil service arrangements in place since 1883. 

The administration is steamrolling changes to regulations so it can open up public land for oil leases in Alaska, in the previously-untouched Arctic National Wildlife Refuge. The period for public comment remains open, and litigation over the highly-contentious exploration and drilling continues, yet the Bureau of Land Management has scheduled an auction for January 6 (more here), two weeks before Biden, who's against leasing, assumes office. Land could be offered for as little as $2 an acre. 

The "Justice" Department is rushing with indecent haste to execute those under federal death penalties, using doubtfully-procured drugs, and only days before Biden, who opposes capital punishment, takes over.

Heretofore, only a handful of people have been executed for federal crimes, and before Trump, none for 30 years. The Trump administration has managed to execute eight people, and is keen to expedite deaths, using, in addition to federal protocols, the often controversial practices of the state where the crime occurred.

Twenty-one states have no death penalty, including Michigan, the first (1847) English-speaking jurisdiction to abolish it.  Most of the states that still have death penalties rarely or never use them. 

•   •   •

Sadly, the 2020 elections saw the loss of a charming American anachronism. The citizens of the State of Rhode Island and Providence Plantations finally agreed to drop the three last words from the state's title, for misguided ("plantation" means settlement), if politically-correct, reasons.

There are still four Commonwealths. 

From Roger Fitch and our friends down under at Justinian.

 

Post-election prospects

ROGER FITCH ESQ • MONDAY, NOVEMBER 9, 2020

Still an enormous number of hypnotised chooks in America ... What's on the cooker till January 20 ... The prospects of plunder during the interregnum ... The presidency as a private financial asset ... Republican judicial mischief ahead ... Corporate prosecutions on easy terms before the Democrats take over ... Roger Fitch in Washington rakes over the ruins 

"Shared psychosis or folie à millions has been well-documented ... contagion of symptoms dissipates when exposure to the primary person is reduced, which is why Donald Trump holds rallies like his life depended on them ... It is also the reason why he cannot leave the presidency - in addition to the possibility of prosecution" -
Yale psychiatrist. 

"Never before in US history has a president done such lasting damage to the fabric of American democracy in such a short amount of time ... The Mess Created By Trump Will Be with Us for Years." -
Der Spiegel

The long-fought election campaign is over, with America's unconventional president breaking laws to the last, even flouting federal court orders to process postal ballots. 

Despite predictions, the expected buyers' remorse among 2016 Donald Trump voters didn't happen, and more Americans than previously suspected were outed as Trump-supporters, arguably a case of mass psychosis or, as an Australian might say, hypnotised chooks. 

Even so, after four years of daylight robbery accompanied by oafish belligerence and bad manners, the president has been expelled, not by congress, but by voters, after his party spent $20 million on 300 lawsuits to deter them from voting. 

The initial election results favouring Joe Biden were predictably contested, using the game plan from the Republicans' notorious 2000 election-theft. As in the 2000 "Brooks Brothers Riot", a Republican rabble besieged vote-counting centres, now in Pennsylvania, Michigan and Arizona rather than Florida.  

The strategy was the same: harass election authorities into pausing the count (preferably while you're ahead), and then invent a pretext to go to federal court. 

It's not likely to succeed, and the New Republic found the attempt farcical, but one law prof took it seriously.

After four long days of counting, the media (of all people) declared Joe Biden Jr the winner, but the incumbent persisted in election litigation, attacking (as expected) the ballots in states with Democrat governors but Republican legislatures, e.g. Pennsylvania, where Trump's lawyers were encouraged by helpful hints from conservative justices, especially Brett Kavanaugh. 

Even so, absent supreme court intervention, come January 20th, America's comprehensively-crooked president will be removed (perhaps forcefully) from the principal crime scene, and could even face jail, more here. Some think he's a flight risk, like other autocrats who lose elections.

Sadly, Mr Trump will not be taking the Republican senate with him, as Democrats netted only one of the three senators they need to take control, although January runoffs in Georgia could result in two more. Without the senate, the Democratic house's election-law reforms, designed to avoid future chaos such as that in 2020, are doomed. 

Real judicial reform, more here and here will also be off the table, and with a newly-minted two-thirds supreme court majority, Republicans can move on from executive power to judicial mischief. 

Americans must now endure, instead of a corrupt Republican administration, a Republican-subservient supreme court, bolstered by the alarming addition of the party loyalist Amy Coney Barrett, the first justice in 151 years to be confirmed without bipartisan support. 

McConnell: the courts are ours

Judicial appointments are already paying off in the lower courts: Trump has "flipped" four of the 12 regional judicial circuits - the 2nd, 3rd, 11th and crucially, the 9th. US senate majority leader Mitch McConnell gloated about stacking the courts: 

"A lot of what we've done over the last four years will be undone sooner or later by the next election [but] ... They won't be able to do much about this for a long time to come."

•   •   •

While it lasted, and for those who could afford to invest in it, the Republicans ran the best government money could buy. For Trump personally, it may have been his most lucrative hustle: he had wonderful, cost-free benefits to exchange and unlimited government assets to exploit, including valuable intangible assets such as drilling permits and military wireless spectra.

Trump's outraged reaction to his election loss suggests he regards the presidency itself as a financial asset, not unlike casino permits, a sort of quadrennial looting licence whose renewal has been unfairly withheld. 

If only the president would now withdraw gracefully, as he did in 1987 after missing out (due to mafia connections) on Sydney's Darling Harbour casino.

•   •   •

From now until January 20, Trump will see how much damage he can inflict during the "lameduck" interregnum, assisted by his scandal-plagued cabinet and 15 senior officials who hold positions illegally. As administration shredders run hot, incoming Democrats will focus on preserving official documents.

With his last 100 days underway, the administration has turned to time-honoured transition manoeuvres: e.g. poison pills (literally) and scorched-earth tactics, more here.

Public lands will be practically given away, while corporate-designed and drafted regulations are forced into effect by government agencies captured by those they regulate.

Corporate prosecutions are being settled on bargain terms. Just as the departing Obama rushed to settle his government's Deutsche Bank case before the bank's most problematic debtor could scuttle it, the outgoing Trump hopes to hobble legal options for the incoming Biden administration.

Republican governments often make sweetheart settlements with corporate defendants in lawsuits brought by Democratic administrations, witness the astonishing Tobacco case write-down from $130 billion to $10 billion in 2005, a record of government corruption that may never be equalled. 

Robert McCallum, the Justice Department fixer who ordered a settlement contrary to that reached by career prosecutors, was modestly rewarded, as US Ambassador to Australia. 

Currently, there is litigation involving pharmaceutical companies who pushed opioids, resulting in a health epidemic in which some 450,000 people died, and the Trump administration is desperate to settle the cases against the ringleader, Purdue Pharma, before Democrats and their plaintiffs' lawyers take over.  

Purdue's owners, the Sackler family, having had ample time to pay themselves retained earnings, put the company into bankruptcy; now, they're eager to settle the case, before a less corporate-friendly government takes office. 

The proposed bankruptcy settlement - subject to court approval - is predictably generous, protecting the extensive Sackler clan from any personal responsibility, and affecting lawsuits filed against the Sacklers and their company by state and local governments.

The proposed settlement suits Republicans: it deprives the mostly-Democratic states, cities and tribes of the level of compensation they anticipated.  

•   •   •

Many fear that the greedy and indiscreet ex-president could be a security threat. Giving Donald Trump confidential briefings after he's out of office doesn't bear thinking about; just imagine his profiting-making schemes for government information. 

One is reminded of Edward VIII's post-abdication behaviour, when the ex-king, briefed on war efforts, afterwards compromised Allied military secrets. 

The British government had a simple solution: a distant vice-regal posting.

But what to do with Donald Trump? 

You couldn't trust him with the Bahamas. 

Roger Fitch is Justinian's man in Washington