At the very least, Justice Alito should recuse himself from cases involving the 2020 election.

( Otherwords.org ) – America’s highest court is supposed to be impartial — especially when it comes to our elections and constitutional rights.

Unfortunately, Supreme Court Justice Samuel Alito has been sending not very subtle signals that he’s aligned with former President Donald Trump’s MAGA movement — and the exclusionary Christian nationalism that motivates many of Trump’s followers.

Americans learned recently that an “Appeal to Heaven” flag was flown over Alito’s beach house last summer. We also found out that an upside-down American flag flew at Alito’s home in the days following the January 6, 2021 attack on the Capitol. Both flags were carried by insurrectionists fighting to keep Donald Trump in office after he lost the 2020 election.

Alito blamed his wife for flying the flags and claimed, not very convincingly, that they had nothing to do with contemporary politics.

“SCOTUS Red Alert,” Digital, Dream / Dreamland v. 3, 2024

The Appeal to Heaven flag, which features an evergreen tree and a phrase taken from the writings of John Locke to justify rebellion against unjust authority, was used by some patriots during the Revolutionary War.

But in recent years, it’s been adopted as a call to spiritual and political warfare against the idea of secular government — and a rallying point for those who believe Trump was anointed by God.

Dutch Sheets, an “apostle” within a movement known as the New Apostolic Reformation, has adopted and promoted the flag for the last decade. Sheets teaches that the church is meant to be “God’s governing force on the Earth.” Promoting a 2018 gathering at Trump’s hotel in Washington, D.C. called “The Turnaround: An Appeal to Heaven,” Sheets declared, “The Church is about to move into a completely new level of enforcing Kingdom rule and the will of God on earth.”

This dominionist ideology is in direct conflict with the constitutional separation of church and state that preserves all Americans’ religious freedom and protects equality under law for people of every faith and no faith.

During Trump’s presidency, Sheets and his allies prayed that God would create more vacancies on the Supreme Court for Trump to fill. After Trump lost the 2020 election, Sheets was extremely

active in the religious-right wing of the “Stop the Steal” movement to keep Trump in power, insisting that God did not want Joe Biden to be president. “Appeal to Heaven” flags were all over the Capitol grounds on January 6, 2021, along with other symbols of Christian nationalist ideology.

The red flags over the Supreme Court are metaphorical. But the flags flown over Alito’s homes, and the messages they have sent, are very real. By flying these flags, he’s called into question his ability to be impartial — and is making it harder for Americans to respect the court or expect its current majority to defend the rights of all Americans.

Despite these concerns, Alito insists that he won’t recuse himself from cases involving the 2020 election. But he should. And Americans should consider the impact that the Supreme Court will have on our rights and freedoms.

Peter Montgomery

Peter Montgomery is a Senior Fellow at People for the American Way.

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In his remarks on Trump’s guilty verdict on Friday, Biden said,

“I just want to say a few words about what happened yesterday in New York City. The American principle that no one is above the law was reaffirmed. Donald Trump was given every opportunity to defend himself. This was a state case, not a federal case, and it was heard by a jury of 12 citizens—-Americans, 12 people like you, like the millions of Americans who have served on juries. This jury was chosen the same way every jury in America is chosen, and it was a process that Donald Trump’s attorney was part of.

“The jury heard five weeks of evidence, and after careful deliberation, they reached a unanimous verdict. They found Donald Trump guilty on all 34 felony counts. He will be given the opportunity, as he should be, to appeal that decision, just like everyone else has that opportunity. That’s how the American system of justice works.

“It is reckless, dangerous, and irresponsible for anyone to say this was rigged just because they don’t like the verdict. Our justice system has endured for nearly 250 years and it literally is the cornerstone of America, our justice system. The justice system should be respected and we should never allow anyone to tear it down. It’s as simple as that. That’s America, that’s who we are, and that’s who we’ll always be, God willing.”

Those are noble sentiments. Biden was pushing back against Trump’s unhinged rants against the court that convicted him.

Trump alleges that Judge Juan Merchan had “conflicts” though he refuses to specify them. He says he didn’t testify because; “The theory is you never testify because as soon as you testify — anybody, if it were George Washington, don’t testify because they’ll get you on something that you said slightly wrong, and then they sue you for perjury.”

Actually, if you don’t commit perjury then you won’t be charged with perjury.

He said of the New York County District court and Manhattan District Attorney Alvin Bragg, “They are in total conjunction with the White House and the DOJ. Just so you understand, this is all done by Biden and his people.”

This allegation is entirely untrue. Biden has no authority over a state court.

Trump also asserted that he is innocent of the charges and said he never shtupped that porn star.

But Biden contradicted himself on every single point when it came to his reaction, and that of his spokesmen, to the request for warrants by the International Criminal Court for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant.

When ICC prosecutor Karim Khan announced the warrant request, Biden immediately said, “Let me be clear, we reject the ICC’s application for arrest warrants against Israeli leaders.”

He went on to parrot a talking point circulated by the American Israel Public Affairs Committee lobbyists, who work closely with Israel’s “Ministry of Strategic Affairs” psy-op outfit, saying that there is no equivalence between Israel and Hamas. But Karim Khan’s warrant request, which also targeted three Hamas leaders, charged them with different crimes than it did Netanyahu and Gallant. It made no equivalence between the two. Biden’s purloined talking point is without substance.

Biden said he did not believe that Israel is guilty of genocide in Gaza. But the ICC did not charge Israel with genocide in the warrant request, but rather with war crimes and crimes against humanity. So that assertion was a mere red herring.

Biden challenged the jurisdiction of the ICC over Israeli war crimes in Gaza: “We don’t recognize their jurisdiction, the way it’s been exercised, and it’s that simple.”

But by the rules of the Rome Statute, signed by 124 of the world’s nations, including several key NATO countries that are close US allies, the court does indeed have jurisdiction. Palestine became a non-member observer state of the UN in 2012 and signed the Rome Statute in 2015. In 2018 the Palestine Authority, which was created by Bill Clinton’s Oslo Peace Treaty, asked the ICC to take up war crimes in Palestine, and in 2021 the court concluded that it had jurisdiction.

Biden’s rejection of jurisdiction is anyway hypocritical, because his administration jumped up and down for joy when in 2023 the ICC indicted Russian strongman Vladimir Putin for war crimes in Ukraine. Neither Russia nor Ukraine are signatories to the Rome Statute and so ICC jurisdiction there is far less well grounded than its jurisdiction over the Palestinian territories.

Biden’s State Department was ordered, likely by Biden, to falsify a report “to absolve Israel of responsibility for blocking humanitarian aid flows into Gaza, overruling the advice of its own experts, according to a former senior US official who resigned this week.”

Just as Trump rejected the right of the Manhattan district attorney to prosecute him, Biden dismissed the right of the ICC to take up Netanyahu’s obvious war crimes.

Just as Trump thinks he’s above the law, Biden thinks Netanyahu is above the law.

Just as Trump falsifies his business records, Biden falsifies government reports on Israel.

Biden ultimately does not respect the rule of law when it comes to Israeli actions and policies any more than Trump respects the rule of law when it comes to Trump.

( Tomdispatch.com ) – It was the jokes about Trump’s rumored flatulence in the courtroom that pushed me toward despair. And don’t think it was disgust with the subject matter either. After all, I’ve lived with teenagers and I wasn’t all that surprised by yet another Trump-inspired trivialization of a critical civic institution. What appalled me was the possibility that — let’s be clear here — such stories would somehow humanize the monster, that his alleged farting and possible use of adult diapers would win him sympathy. I even wondered whether such rumors could be part of a scheme to win him votes.

So, yes, Trump can make you that crazy.

Or maybe it’s something about important trials, about the slow unspooling of evidence and our hunger for resolution that makes us simultaneously twitchy and increasingly catatonic. I experienced this once before on a national level, just a little less than 30 years ago, when lawyers for another adored psycho tested the American justice system with what could only be called a sleazy brilliance. They put racism on trial. This time around, democracy may be at stake and it’s possible the defense lawyers may win again (as they just did with another monster, Harvey Weinstein).

Since the first day of Trump’s trial, I’ve been remembering bits of the O.J. Simpson extravaganza, especially the moment when he was declared not guilty of killing his wife, Nicole Brown Simpson, and her friend Ronald Goldman, outside her condominium in Los Angeles. I recall that moment vividly. I was eating lunch in a Boston sports bar on Tuesday, October 3, 1995, when the verdict was suddenly trumpeted on what seemed like a dozen giant TV sets. The diners, predominantly white, froze in shock. As we sat there, silent, we slowly became aware of a presence surrounding us and then raucous sounds filled the dining room. The kitchen and wait staff, mostly Black, were on the perimeters of that room, clapping and shouting. I was stunned. I had never before witnessed, close up, such irreconcilable factions.

Other Divisions

There certainly have been other examples of the cleaving of America. The Revolution and the Civil War come to mind, not to speak of the half-century-old Boston school-busing controversy and, of course, the insurrection of January 6, 2021. Still, the division over the O.J. decision was so simple, focused, and emotional that it remains for me a dangerous symbol of intransigence. O.J. may have been more representational than real as a national influence, but he was enough of a force to make me wonder what his story presaged and what a verdict in the current trial might provoke in this far shakier time of ours, especially from former president and MAGA goon Donald Trump, a man eager to intimidate those trying him as well as everyone else.

Looking for parallels between Orenthal J. Simpson and Donald J. Trump may produce shaky outcomes, but it could also help sharpen our sense of their symbolic meanings. They were born 13 months apart in the post-World War II boom years. Although Trump was a white, rich New Yorker and O.J. a poor, Black Californian, they were both driven throughout their lives by a desperation to be admired. Both of them were also large men, gabby and good-looking. Their social cunning, however, wore distinctly different masks. Trump is crude in an entitled frat boy way, while O.J. was smooth and ingratiating, particularly with white men (though distinctly rough with women).

In my years as a sports reporter for the New York Times, I dealt with both of them. In one-on-one situations, I always felt I was being played but never threatened. With O.J., it was hard not to be overwhelmed by his neediness to be liked, but I must admit that I was flattered by the attention. With Trump, I knew I was being manipulated by his unctuousness, but he was good copy, too. Early on, it was easy to write Trump off as a buffoon and assume O.J. was a harmless, sweet-natured guy (although the broadcaster Howard Cosell dubbed him “the lost boy”). That either of them might go beyond being an entertainer seemed a silly notion at the time.

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In some ways neither did. For all Trump’s power to energize crowds, it’s never been thanks to an overwhelming idea, an inspiring example, or even an alluring promise. He merely gives his followers permission and justification to enjoy the short-term energy of hate. Eventually, it will undoubtedly turn against him, but not soon enough for the rest of us.

O.J., in contrast, made us feel good, reveling in his phenomenal skill on the football field — he was a beautiful player there and anything but a brute — while taking pleasure in his comedic skills. He was genuinely funny and willing to mock himself. With his 11-year Hall of Fame football career behind him, he began carefully crafting a Hollywood career, avoiding quick-buck blaxpolitation movies for lovable supporting roles. As sportswriter Ralph Wiley put it, white people came to consider Simpson a “unifying symbol of all races.”

The Counter-Revolutionary

O.J. was easy to like, a charming, charismatic, talented athlete and actor who conveniently served to offset much of the growing African-American activism in the world of sports.

The 1968 Olympic demonstrations of John Carlos and Tommie Smith, the hard anger of pro football superstar Jim Brown, the political rants of Muhammad Ali, among others, frightened the owners, broadcasters, and corporate executives who had just gotten a handle on making big money out of sports. O.J. was a welcome counterrevolutionary. And unlike most other Black stars, he was sociable and accessible. It was fun to play golf with him and cavort under his testosterone shower.

When O.J. died last month of prostate cancer at 76, the first image that came to my mind was of that divided Boston sports bar, but it was replaced fairly quickly by images of O.J. himself, iconic ones that shaped our notions of him and of America then, most of them offering a false promise of a color-blind country. Even more memorable than O.J. dancing with the football through whatever defensive line opposed him was O.J. clowning adorably on the movie screen or charging through an airport in a Hertz commercial.

As for me, I’ll never forget him sitting across a table one night in 1969, the self-defined essence of a figure somehow beyond race in this divided country of ours. That night in Joe Namath’s trendy midtown Manhattan bar, Bachelors III, left me with my basic sense of who that delightful and delusional man was. He was then a 22-year-old former college superstar holding out for more money in his rookie pro-football contract. I was a New York Times sports columnist who had been asked to introduce him to Namath, the recently famous New York Jets Super Bowl quarterback. The introductions had originally been Cosell’s night mission, but as the evening stretched on (and on), it simply got too late for him, and the task fell to me. (I’d been tagging along to cover the first meeting of those two football heroes.)

O.J. on O.J.

Well after midnight in that crowded bar, it became clear that Namath was taking his sweet time in some ritual of celebrity one-upmanship. Before he left, Cosell had offered to drag Namath over, but O.J., ever cool, shook his head. “You don’t rush the great ones,” he said. He started telling me stories to pass the time, ever gracious and clearly fearing I might get bored and leave.

One he told me that night I never forgot — and subsequently retold in the Oscar-winning ESPN documentary “O.J.: Made in America,” directed by Ezra Edelman. It took place at a teammate’s wedding. O.J. overheard a white woman at an adjoining table say, “Look, there’s O.J. Simpson and some [N-words].”

I was appalled. O.J. was amused by my reaction. He said, “No, it was great. Don’t you understand? She knew that I wasn’t Black. She saw me as O.J.”

Other stories followed, though I don’t remember them. All I could think about was how clueless poor O.J. was. He didn’t understand that he was traveling under the protection of an honorary white pass, revocable at any moment. While he could delude himself, I thought, maybe even carry others along in his fantasy, there would undoubtedly be a reckoning someday. Soon enough, Joe Namath did indeed arrive and I was able to slip away, pondering what had already become a disturbing memory, even as O.J. got that rookie football money he demanded and later became a successful movie actor.

His delusion like Trump’s (until the first of his court cases began recently) was nourished by being treated as if he and he alone could get away with anything. (No better example of such a belief was Trump’s 2016 comment that “I could stand in the middle of 5th Avenue and shoot somebody and I wouldn’t lose voters.”) Since his time at the University of Southern California, where he won the Heisman Trophy, college football’s highest award, the police, responding to the domestic violence complaints of his various girlfriends, would rarely stay longer than to collect an autograph. His second wife, Nicole Brown, called for help many times during and after their marriage, sometimes bruised and bleeding. O.J. was arrested once, in 1989, convicted of spousal abuse, and let off with a fine.

If any good came from any of this, including her death, it was the attention that domestic violence finally got.

Paybacks

As to her murder, it’s hard to believe that anyone who paid attention to the evidence brought out in the trial could actually have believed O.J. innocent (though, of course, the jury did exactly that). However, it’s easy to believe someone could think that the not-guilty verdict from a mostly Black jury was payback for all the racist police decisions that had killed so many Black men without any justice in sight. Both Americas expressed in that Boston sports bar could understand that — the only difference being that the exulting kitchen staff might think the payback appropriate, a rare win, while the stunned diners found it morally reprehensible and an implicit threat.

Both Americas might, however, agree on this: the verdict proved that the justice system worked — for anyone with the will and the money to take it all the way.

Now, here’s the quantum O.J. leap: Why do so many people think the 2016 election of Donald Trump was an appropriate response to social and economically wounding decisions imposed by “the elites”? Just as O.J. became symbolic of the false promise of a color-blind America, so has Trump masqueraded as the champion of Americans underserved by democracy, left behind by the exclusionary progress of technology, and likely to be replaced (so he claims) by immigrants of color.

And here’s the big question: What impact will that role of his have on the current Trump jury and, in effect, the 2024 election?

Tackling Trump

Is there any possibility that the Donald Trump chapter in American history is finally ending amid a chorus of farts, done in by a paper-chasing trial that couldn’t be more banal in its particulars? Should it be considered the latest form of ironic payback? After all, O.J. was finally brought down not by beating or even possibly murdering his wife, but by an almost comical armed robbery caper in which he tried to steal back some of his own memorabilia. For that, he would end up serving nine years in prison.

The possibility of a future Trump in prison, the very thought that no one is above the law could in any way apply to him, is, of course, the primary draw of this latest trial of a delusional psycho. Admittedly, it has yet to capture our attention as thoroughly as O.J.’s murder trial did, but it’s still early days in a courtroom where, without live camera and audio coverage, we can’t satisfy our digital-age need for that streaming TV experience. Maybe the fart jokes or some higher level of Trumpian comedy will engage our interest, or perhaps one of his future trials (if they ever take place) will do the trick. It’s hard, of course, for a parade of misdemeanors, including a presidential theft of national security documents, to compete with the memory of a violent murder.

Or maybe, as with so much else in American history, everything will simply start to run together. Last month, for instance, the Los Angeles Times mistakenly inserted Trump for O.J. in an obituary of the former football star, claiming that the former president had served the former football player’s sentence in prison. Republican lawyer and gadfly George Conway commented, “Understandable mistake. It can be hard to keep all these clearly guilty sociopaths straight.”

How true. And now, as we await the first of four possible juries on the former president, hold your nose. Odor in the court.

Copyright 2024 Robert Lipsyte

Via Tomdispatch.com

Sadly enough, justice delayed (and possibly denied) is once again front and center in America as we face the specter of Donald Trump and his insistence on eternally evading the reach of the law. What’s at stake isn’t just the fate of the former president, but an essential aspect of democracy.

The Georgia Case

Recently, the country was privy to attempts by Donald Trump’s lawyers to delay, if not completely derail, legal proceedings in a Georgia courtroom where Trump faces 13 felony counts for, in essence, trying to steal an election. In a hearing linked to that Georgia election interference case, originally scheduled to begin in August, a team of Trump defense attorneys attempted to remove prosecuting District Attorney Fani Willis from the case. The defense team has argued that Willis was not only having an affair with a man she had appointed as lead prosecutor in that case but had gained financially from doing so.

Should the judge indeed order her removed, the trial could be delayed until well past the November presidential election and might never take place at all. A new prosecutor could decide not to bring charges against Trump and his 14 co-defendants, and even finding one could prove painfully difficult, given the size, complexity, and cost of the case. According to NBC News politics reporter Dareh Gregorian, it would be a “massive undertaking.” Not to mention that selecting a new prosecutor could spark all sorts of internal politics in the Georgia justice system. The “delay,” in other words, could well amount to an utter defeat. Originally scheduled to be decided before the 2024 presidential election, the trial would, at best, be postponed into the distant future and might never take place.

And that’s not the only case in which Trump’s team is deploying a strategy of delay in the service of strangling future legal proceedings.

The Jack Smith Federal Cases

Special Counsel Jack Smith — appointed by Attorney General Merrick Garland in November 2022 after more than a year of persistent calls for an investigation into the January 6th insurrection — has mounted two federal criminal cases against Trump. One involves classified documents he took back to his Mar-a-Lago estate and refused to return. It’s now before a Florida federal court (and a Trump-appointed judge). The other is the January 6th election interference case taking place in Washington, D.C. Both have repeatedly succumbed to “assorted motions and maneuvers” of delay, as Mother Jones columnist David Corn aptly puts it.

In truth, delay has been front and center in each case. Only recently, Trump’s lawyers petitioned the Supreme Court to put Smith’s potentially devastating election interference case on hold while the former president appealed a lower court ruling that he doesn’t have presidential immunity from federal prosecution. He has now filed an appeal with the Supreme Court, asking the justices to determine whether or not he indeed does have immunity. This comes after the D.C. appellate court took over a month to issue its decision, just one more way in which timeliness has been left in the lurch at a moment when time should be of the essence.

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In a second delaying maneuver in that case, the former president’s lawyers have asked the Supreme Court to pause proceedings until the trial of another January 6th defendant — subject to similar charges — concludes. Originally scheduled to begin on March 4th, the case has already been successfully stalled, though it could still, at least theoretically, begin in July, overlapping with the Republican National Convention or even during the fall election period itself.

In a similar fashion, Trump’s legal team has sought to push off Smith’s second case, the one involving those boxes of classified documents, some of which Trump so tellingly piled up in his Mar-a-Lago bathroom and shower. That case involves a 37-count indictment, including charges of willfully retaining national security documents, withholding and mishandling classified documents, and the purposeful obstruction of justice. Repeatedly, Trump’s lawyers have asked for delays in the case, including a request that Judge Aileen Cannon postpone the trial until after the November election. That Trump-appointed judge has indeed agreed to some delays but so far has kept the trial’s starting date at May 20th. In frustration at the slow pace of that case, Smith has called the Trump team’s persistent attempts at delay “relentless and misleading.” According to New York Times reporters Alan Feuer and Maggie Haberman, the trial date “will almost certainly be delayed” — the only question is how long the delay will be.

The New York State Case

As in the Georgia case, the fourth criminal indictment against the former president is taking place in state court. Manhattan District Attorney Alvin Bragg has indicted him in what’s commonly known as “the hush-money case.” What’s at stake, however, is not only the silencing of porn star Stormy Daniels with whom Trump had an affair just before the 2016 election. The indictment accuses him of “falsifying New York business records in order to conceal damaging information and unlawful activity from American voters before and after the 2016 election.” As Bragg explained to WNYC’s Brian Lehrer, “The core is not money for sex. We would say it’s about conspiring to corrupt a presidential election and then lying in New York business records to cover it up. That’s the heart of the case as we’ve laid out in court filings.”

Here, too, Trump sought a delay, alleging that showing up in court for the trial, as required by law, would interfere with his campaign for president. His appeals were, however, denied by the judge overseeing the case, which may indeed mean that it will be the first criminal case against him to actually take place. It’s now scheduled for March 25th in Manhattan.

Undermining Democracy

Delay matters when it comes to the 2024 election. As has become ever clearer, potential peril of a remarkable sort may lie ahead for our democracy, given Trump’s warnings about his plans, if reelected, to dismantle the civil service, pull out of NATO, deploy federal troops domestically, and gut the Department of Justice, as well, undoubtedly, as trying to pardon himself in the federal cases against him. And that’s just to begin down a list of the possible dangers.

But part of what’s now at stake, even without such an election outcome, is the viability and legitimacy of the judicial system itself. While the question of whether a president is above the law hovers over political discourse these days, there should be another major concern here — namely, the perception that our courts may not be up to the tasks assigned to them. Nowhere has this test been more strained than when it comes to the issue of timely justice, the right, that is, to a fair and speedy trial.

The notion of a timely trial, after all, has been part of the fabric of American justice since the founding of the legal system. The Sixth Amendment very specifically calls for the ensuring of “a speedy and public trial.” Later statutes passed by Congress — notably the 1974 Speedy Trial Act — offered additional support for the idea that justice must be dealt out in a timely fashion. Under that act, the disposition of a case is supposed to occur within 70 days, although numerous exceptions are allowed for extending that timeframe in the name of fair and just proceedings, among them the many pre-trial motions we’re now seeing in the Trump cases.

Guantánamo

It’s worth noting that the potential failure of the courts to operate in a timely fashion is anything but new to this Trump-era moment. Notably, in the major national security case of the twenty-first century, the courts failed dismally. Imagine this: more than 22 years after the nightmarish 9/11 attacks, this country has been unable to try the individuals, long in custody, who are accused of being co-conspirators in those attacks that killed thousands of Americans and took down the Twin Towers in New York, while devastating the Pentagon in Washington.

The 9/11 case has, in fact, been in a pretrial phase for nearly two decades now. In 2008, prosecutors for the military commissions set up at Guantánamo, Cuba, produced an initial indictment in the case. In 2009, Eric Holder, President Barack Obama’s attorney general, moved to transfer the case from the military commissions to federal court in Manhattan, a place where numerous international terrorism cases had been tried from the 1990s on. At the time, Holder’s Department of Justice issued a federal sealed indictment against the five 9/11 defendants.

Holder’s explanation spoke directly to the connection between timeliness and justice. He already rued the five years that had passed since those men were brought to Guantánamo. “I am confident in the ability of our courts to provide these defendants a fair trial, just as they have for over 200 years. The victims’ loved ones deserve the opportunity to see the alleged plotters of those attacks held accountable in court, an opportunity that has been too long delayed.”

Before the federal courts even had a chance to take up the case, however, public reaction ensured further obstacles to a federal trial. New York officials, family members of the victims, and congressional representatives insisted that security concerns made Holder’s proposal too dangerous. The pushback took the form of fears of violence on the streets of New York, along with anger that American rights and laws would be extended to terrorists. New York Mayor Mike Bloomberg and eventually Senator Chuck Schumer withdrew their support for Holder’s plan.

Sent back to Guantanamo in 2011, the 9/11 trial still has no set date. And because the defendants were tortured while in CIA custody — subjected to sleep deprivation, long periods of solitary confinement, waterboarding, and beatings — defense attorneys have persistently argued that the confessions of any of the defendants or tortured witnesses are invalid. In 2024, it’s hard to imagine the actual trial ever starting, though pre-trial hearings go on year after year after year.

Prior to the pandemic, jury selection for the trial was scheduled to begin in January 2021. Three years later, no trial date has yet been set and it may never be. Currently, the judge in the case has been asked to rule on an argument by one of the 9/11 case defense attorneys that, due to “outrageous government conduct” — that is, the torture of his client at a CIA “black site” — the case should be dismissed.

To make matters worse, after so many years, judges, prosecutors, and defense attorneys attached to the trial continue to resign or retire, including the presiding judge and, last month, one of the longest-serving prosecutors, both in the wake of the resignations of others in recent years, including a lead defense attorney and the chief prosecutor in the case.

What’s at Stake

While the military commissions, the federal courts, and the state courts each have different expectations of speed, they do share the mandate of upholding a fundamental element of democracy. In adjudicating guilt and punishment according to the laws of the land, they promise victims the right to a resolution and remedy and defendants the right to a fair trial. In a larger sense, they promise society security and safety, premised on the expectation that those who have broken the law will be punished in a timely fashion and serve as a deterrent to others who might seek to do the same.

In an address to the American Bar Association in August 1970, then-Supreme Court Chief Justice Warren Burger waxed eloquent about the foreseeable and devastating fallout that would follow a loss of trust in the courts. In his words, “A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people.”

According to the former chief justice, delay was one of three things that “could destroy that confidence and do incalculable damage to society.” He concluded that “the delays in trials are often one of the gravest threats to individual rights. Both the accused and the public are entitled to a prompt trial.”

Unfortunately, so many years later, Donald Trump and his lawyers seem hard at work proving that the institutionalization of delay and the damage to the legitimacy of the court system that goes with it wasn’t restricted to those 9/11 cases. Quite the opposite, we now find ourselves in an era when the institutions designed to keep the United States a functioning democracy, including those courts, are at risk.

The 118th Congress is currently on course to be “one of the least productive in U.S. history.” In the name of partisanship, it has opted for stasis over passing bills. And thanks to this Congress — and the encroaching influence of Donald Trump –the executive branch is under duress as well. Witness the ludicrous congressional impeachment drives now underway against both President Joe Biden and Homeland Security Secretary Alejandro Mayorkas. So, too, the Supreme Court may be getting its lowest approval ratings ever, having reversed important rulings like Roe v. Wade and the Voting Rights Act.

Rather than rising to the moment, our courts seem to be succumbing to the uncertainty of it all, delaying justice again and again rather than demonstrating the power of our judicial system to operate responsibly. In the current context, should such failure continue, justice delayed could all too easily become democracy denied.

Copyright 2024 Karen Greenberg

Via Tomdispatch.com

( Michigan Advance ) – WASHINGTON — Former President Donald Trump can be prosecuted for charges he schemed to overturn the 2020 election, a three-judge panel of a federal appeals court ruled Tuesday, rejecting Trump’s argument he was immune from criminal prosecution for any alleged conduct during his presidential term.

In a unanimous opinion, the D.C. Circuit Court of Appeals panel denied Trump’s request to throw out the federal charges accusing him of lying to and encouraging supporters who turned violent on Jan. 6, 2021.

Trump and his attorneys argued the case should be dismissed because Trump was acting in his official capacity as president and that allowing a president to be sued would have disastrous consequences.

The court found those arguments were “unsupported by precedent, history or the text and structure of the Constitution.”

“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” Tuesday’s unsigned opinion said. “But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”

Trump is expected to appeal the ruling, either to the full D.C. Circuit or directly to the U.S. Supreme Court, in a process that could take months while he continues his campaign as the front-runner for the Republican presidential nomination.

Neither court is required to take the case, but exercising his appellate options will help Trump extend the case, potentially beyond Election Day, although Trump and his legal team have not explicitly said it is part of their strategy to delay the case as long as possible.

Further appeals

The full D.C. Circuit is “highly unlikely” to hear a further appeal of the presidential immunity ruling, according to legal experts Norman L. Eisen, Matthew A. Seligman and Joshua Kolb, who wrote an outline of potential timelines in the case for Just Security, a site devoted to foreign policy, democracy and security analysis, that published Jan. 9.

The Supreme Court is also “unlikely” to hear an appeal, they wrote.

Trump brought the appeal from a trial court in D.C., where he faces federal charges related to the 2021 attack on the Capitol. An investigation by special counsel Jack Smith resulted in a four-count indictment last year accusing Trump of conspiring to overturn the 2020 presidential election.

“MSNBC Video: “Maddow: Trump claim ‘outrighted mocked’ by court in immunity rejection”

The indictment accuses Trump of working with a group of co-conspirators to recruit false slates of electors, lying to the public about non-existent determinative election fraud and encouraging supporters to obstruct the election certification in a violent attack on the Capitol on Jan. 6, 2021.

Trump raised a so-called presidential immunity defense in the trial court, saying he could not be prosecuted for the actions alleged in the indictment because he was acting in his official capacity as president to counteract election fraud.

U.S. District Judge Tanya S. Chutkan denied that claim, a decision Trump appealed to the D.C. Circuit. On Friday, Chutkan also officially postponed his trial, which had been set to begin March 4.

Hours before the three-judge panel issued its ruling, Trump posted in all capital letters on his online platform, Truth Social, that “IF IMMUNITY IS NOT GRANTED TO A PRESIDENT, EVERY PRESIDENT THAT LEAVES OFFICE WILL BE IMMEDIATELY INDICTED BY THE OPPOSING PARTY.”

“WITHOUT COMPLETE IMMUNITY, A PRESIDENT OF THE UNITED STATES WOULD NOT BE ABLE TO PROPERLY FUNCTION!” he wrote.

Jacob Fischler

Jacob covers federal policy and helps direct national coverage as deputy Washington bureau chief for States Newsroom. Based in Oregon, he focuses on Western issues. His coverage areas include climate, energy development, public lands and infrastructure.

Ashley Murray

Ashley Murray covers the nation’s capital as a senior reporter for States Newsroom. Her coverage areas include domestic policy and appropriations.

Via Michigan Advance

Published under Creative Commons license CC BY-NC-ND 4.0.

 

The judge felt he had to dismiss the case, given a whole plethora of previous Supreme Court decisions. He clearly did so, however, with enormous regret.

White seems to be calling for mass political action by Americans on the issue. He asserted that “It is every individual’s obligation to confront the current siege in Gaza.” He went on to lament, however, “but it also this Court’s obligation to remain within the metes and bounds of its jurisdictional scope.”

He wrote in his conclusion,

“There are rare cases in which the preferred outcome is inaccessible to the Court. This is one of those cases. The Court is bound by precedent and the division of our coordinate branches of government to abstain from exercising jurisdiction in this matter. Yet, as the ICJ has found, it is plausible that Israel’s conduct amounts to genocide. This Court implores Defendants to examine the results of their unflagging support of the military siege against the Palestinians in Gaza.”

Here is a federal judge pleading with the president of the United States, the secretary of state, and the secretary of defense to cease their unstinting support for Israeli military tactics in Gaza that are so extensively harming the lives of Palestinian civilians in Gaza.

White wrote, “On November 13, 2023, Plaintiffs filed this suit against the Defendants to ‘take all measures within their power to prevent Israel’s commission of genocidal acts against the Palestinian people of Gaza. (Compl., Prayer for Relief.) Plaintiffs allege that Defendants violate their duties under Article I of the Genocide Convention by supporting Israel’s military actions following the attacks of October 7, 2023.'” They asked the court to issue a preliminary injunction against the Biden administration from further participating in and aiding these genocidal acts.

The idea is that the US is a signatory to the Genocide Convention of 1948, which makes it US law, so that Biden and his cabinet secretaries are violating not just international law but American domestic law.

White noted that the International Court of Justice recently found that the charges of genocide against Israel are plausible, given the wholesale destruction of civilian life and property and given the public statements of intent voiced by Israeli leaders.

In the British and American tradition of common law, precedent can be cited from abroad, so it is legitimate for White to instance the ICJ preliminary order that Israel cease behaving in ways that can plausibly construed as genocidal.

White quoted the ICJ preliminary decision at length in his own ruling, saying, “The ICJ found that:

‘the military operation being conducted by Israel following the attack of 7 October 2023 has resulted in a large number of deaths and injuries, as well as the massive destruction of homes, forcible displacement of the vast majority of the population, and extensive damage to civilian infrastructure. While figures relating to the Gaza Strip cannot be independently verified, recent information indicates that 25,700 Palestinians have been killed, over 63,000 injuries have been reported, over 360,000 housing units have been destroyed or partially damaged and approximately 1.7 million persons have been internally displaced.'”

He further noted that “the International Court found that it considered it “plausible [that the] rights in question in these proceedings, namely the right of Palestinians in the Gaza Strip to be protected from acts of genocide and related prohibited acts identified in Article III of the Genocide Convention, … are of such a nature that prejudice to them is capable of causing irreparable harm.”

Global News Video: “”It’s a death sentence,” Palestinians in Gaza say after UNRWA funding halt”

For a court case to go forward, certain basic criteria have to be met. Do the plaintiffs have standing? White appears to have accepted that they did. That is, real harm was being inflicted on the families of these Palestinian-Americans from the Gaza Strip. Is there firm evidence of a crime being committed? White says that there clearly is, and he joins his voice to that of the ICJ here. Has the action been brought in an appropriate venue? And here the case failed, not on its merits, but over this jurisdictional issue.

The problem with this case, White held, is that it concerns political policy, and the Supreme Court has a long history of holding that courts cannot interfere with executive decision-making in the purely political realm. Moreover, foreign policy is a primary example of executive decision-making of a political sort in which courts have typically declined to intervene. So the separation of powers between the judiciary and the executive disallows White from telling Biden what he can do in the political realm, especially in the area of foreign policy.

White writes, “Foreign policy is constitutionally committed to the political branches of government, and disputes over foreign policy are considered nonjusticiable political questions. See, e.g., Haig v. Agee, 453 U.S. 280, 292 (1981) (“[T]he conduct of foreign relations … [is] exclusively entrusted to the political branches … [and] immune from judicial inquiry or interference.”). “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 319 (1936.”

He noted that not only does the president have wide latitude in foreign policy that cannot be easily challenged in the courts, but that the policy of unstinting support for Israel’s actions is also rooted in Congressional legislation. So where can this action be brought, since it is so clearly meritorious in the judge’s eyes?

In asserting that “It is every individual’s obligation to confront the current siege in Gaza,” White seemed to be calling for mass political action by the people. It is a remarkable appeal for a federal judge. He recognizes that we won’t get justice on this issue from Biden or from Congress. If things are to change, all Americans must confront this genocide in the legal ways available to them.

Applying a different standard to a powerful person reflects only contempt for the rule of law.

Mitchell Zimmerman

Mitchell Zimmerman is an attorney, longtime social activist, and author of the anti-racism thriller Mississippi Reckoning.

What was Donald Trump thinking when he set about trying to maintain the presidency after losing it to Joe Biden?

That’s the key question a jury will need to consider in Trump’s federal trial on charges announced Aug. 1, 2023, stemming from Trump’s attempts to overthrow the results of the 2020 presidential election.

The latest indictment charges Trump with conspiring to defraud the United States; to obstruct an official government proceeding; and to deprive U.S. citizens of a civil right – namely, to have their vote count.

In a fourth count, Trump is charged with obstructing, or attempting to obstruct, an official proceeding of Congress.

As a criminal law scholar, it’s my belief that the key to a conviction or acquittal on these counts will be what jurors believe to be Trump’s state of mind at the time of these alleged events.

Criminal intent

U.S. criminal law requires that the accused not just engage in an act, but to engage in that act with a guilty mindset. In other words, it is not enough to do something; the accused has to intend to do the thing to merit this charge.

In some statutes, criminal negligence is enough to convict someone of a crime. This means that the person grossly violated some duty of care, even though it may have been unintentional.

At the other end of the spectrum, some statutes require specific intent as the requisite state of mind for someone to be convicted. Specific intent means that the accused intended to cause the particular result that ensued.

With respect to the allegations lodged against Trump, the government must prove that Trump knowingly lied and intended to break the law.

The last count – obstruction of a proceeding of Congress – requires the government to prove corrupt intent, which means the actor intended to do something, and his motivation to do it was unlawful.

In short, the government must prove that Trump intended to obstruct the certification of the Electoral College vote for the purpose of overturning what he knew to be a lawful election.

Consciousness of guilt

The next logical question is how does one determine intent?

It’s impossible to look into someone’s mind to figure out their intent. As a result, the law deploys several tools that allow jurors to infer the intent of an accused, largely from his actions.

Consciousness of guilt is the leading tool.

Let’s say a person is accused of homicide, a charge which requires a specific intent to kill. The defense is that the death was the result of an accident.

The government is allowed to present evidence that shows the accused hid the body, disposed of the gun and tried to create a false alibi. None of these actions are consistent with an accident. Instead, the accused’s actions demonstrate a consciousness of guilt, which allows the jury to infer intent.

Another example may be an accountant who comes into the office at midnight and logs on to a co-worker’s account to change the ledger of a client. Those actions are not consistent with an innocent accounting error; they demonstrate a consciousness of guilt.

Trump’s actions

The same principle holds with the Trump election case as well as the other federal indictment in which Trump is accused of taking classified documents to his Mar-a-Lago home in Florida in violation of federal law.

In late July 2023, for instance, Special Counsel Jack Smith added new charges to the original indictment and alleged that Trump directed two of his employees to delete security camera footage of storage boxes containing classified documents being moved before federal investigators arrived.

That behavior may be used as evidence of Trump’s consciousness of guilt and proof of his intent to commit a crime.

In another example, Trump had a conversation in July 2021 at his summer home in Bedminster, N.J., in which he talked about a military document concerning Iran.

In that conversation, which was recorded, Trump said: “As president, I could have declassified it. Now I can’t, you know, but this is still secret.”

As the country contemplates these indictments, it’s important to remember that federal prosecutors will dissect everything Trump did, said or heard to argue that his behavior indicates that he intended to commit the crimes for which he is charged.

Ronald S. Sullivan Jr., Professor of Law, Harvard University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

A Grand Jury empaneled by Special Prosecutor Jack Smith has issued an indictment (full text here) against Donald John Trump on four counts,

Smith delivered a statement, saying, “Today, an indictment was unsealed charging Donald J. Trump with conspiring to defraud the United States, conspiring to disenfranchise voters, and conspiring and attempting to obstruct an official proceeding. The indictment was issued by a grand jury of citizens here in the District of Columbia and sets forth the crimes charged in detail. I encourage everyone to read it in full.”

This indictment follows a federal indictment for mishandling classified documents and an indictment by the Manhattan district attorney on election fraud involving the payment of hush money to a porn star and a Playboy model to prevent voters from learning about his simultaneous affairs with the two women while his wife Melania was pregnant with their son Barron.

Although the four charges are specific, the over-all implication of the most recent indictment is that Trump set in motion complex machinery in order to overthrow the lawfully elected government of the United States, the first time a US president has behaved this way. Who else wanted to see the US government fall? King George III, Jefferson Davis, Adolf Hitler. Trump joins this rogue’s gallery. Smith’s indictment goes into the details of a meticulous plot to prevent the electoral college from voting Joe Biden in and to prevent Congress from certifying the win, which involved setting up fake electors, pressuring state ballot counters, threatening Vice President Mike Pence, and encouraging an armed insurrection at the Capitol.

I wrote in early 2017 even before Trump was inaugurated about the dangers I saw of his sort of personality assuming the presidency, and it seems to me that I was prescient. In the light of this indictment it is worth revisiting my thoughts in that essay, in which I may have coined the term “psychopathocracy.” Now you see what I meant:

“We are now on the brink of a new form of government, undreamed of by Aristotle, who spoke of monarchy, aristocracy and democracy. We are headed to a psychopathocracy, which has something in common with the degraded form of classical regime types that Aristotle warned against (he thought monarchy can deteriorate into despotism, aristocracy into oligarchy, and democracy into demagoguery). Psychopathocracy is the rule of persons who lack a basic ability to empathize with others, to feel their pain or to feel guilty about harming them.

“Psychopathocracy is different from mere bad policy. We can all disagree about the direction of government or particular initiatives. Often people backing a policy that harms others do not understand the harm, or think it is averting a greater harm. It isn’t true that all high politicians are psychopaths who don’t care about injury being done to people. And high politicians have put in programs like social security that have lifted millions of elders out of poverty over decades. They did it because they cared about people.

“About 1% of the population is comprised of born psychopaths. The condition of a lack of conscience and inability to empathize with the pain of others or feel remorse may well be a condition one is born with, and in a third of cases can be tested for with an MRI scan. It is thought that another 5 percent of the population loses its ability to empathize through brain damage, trauma or other sorts of physical or psychological injuries.

“It is further thought that about 12% of the population is easily manipulated by psychopaths into pyschopath-like behavior or ideas. This 18% of the population is potentially extremely dangerous. They do not have a feedback loop for emotional or physical distress. They are the sort of people who would run somebody over and flee the scene without calling for medical help for the victim.

“Psychopaths in power are dangerous because of their inability to feel the pain of others. George W. Bush and Dick Cheney set of a chain of events in motion that left hundreds of thousands of Iraqis dead, and they displaced from their homes (i.e. made homeless) 4 million of Iraq’s then 30 million people. This is not to mention the 4,486 Us troops killed the 500,000 wounded physically or psychologically). They set up a chain of events that led to a dangerous cult, Daesh (ISIS, ISIL) taking over 40% of Iraqi territory. But if you ask them if they regret what they did, they so ‘no.’ And I think they are being honest. They cannot empathize with the victims they helped create.

“Politicians who want to deprive people of their health care so as to lower taxes on billionaires, who want to make women bear the babies of their rapists, who want to torture helpless prisoners, who want to burn fossil fuels for profit when they endanger the planet, who want to carpet bomb or nuke millions of non-combatants to get at a few guerrillas– these are psychopaths.

“Psychopaths are not necessarily criminal or violent, though there are four times as many psychopaths in prison as in the general population. All serial killers are psychopaths. Fraudsters like Bernie Madoff are psychopaths.

“CEOs of corporations and successful politicians are also disproportionately likely to be psychopaths. Robert Hare developed a 20-point checklist for the condition, which, however, does not exactly overlap with the definition in DSM-V, the description of mental conditions put out by the American Psychiatric Association. Hare did some of his research in prisons and so his checklist is skewed a bit for criminal activity.

“You don’t need to be a psychologist to recognize that Donald J. Trump and several nominees to his incoming administration exhibit obvious signs of psychopathy. Having psychopaths in the White House is not unprecedented. It seems pretty obvious that Dick Nixon, a pathological liar who actually derailed the 1968 peace negotiations with Vietnam to keep his rival Hubert Humphrey from looking good to the voters, had this condition. Untold American soldiers and Vietnamese peasants died so Nixon could be president.

“What is remarkable about Trump and his cronies is that their hatred is raw and broad-spectrum. Mexican-Americans, African-Americans, Muslim-Americans, white liberals (coded by the Neo-Nazis as N-lovers) and some of them don’t like Jews very much. That is, they seem to hate an absolute majority of the American population.

“Trump’s psychopathy is evident in his exaggerated estimation of himself, his need constantly to troll the public for stimulation, his superficial charm, his need to lie, his inability to feel remorse or guilt, his emotional shallowness, his promiscuity and lack of impulse control and serial sexual assault, his use of bankruptcy to avoid paying his creditors and his attraction to a business like casinos which preys on people (many games in casinos are skewed for the House at rates of 11% and on up even to 20%). Trump is more disciplined and single-minded about his career than most psychopaths manage, but otherwise he seems a classic case. He also suffers from a distinct but related condition, of narcissistic personality disorder.

“Many of the people around Trump, who speak for him on television, who are tapped to advise him on national security, on the environment, on issues like net neutrality, also exhibit clear signs of psychopathy. Since only about 3 million Americans are born psychopaths, the idea that a whole group of them is moving into power in Washington together is pretty scary. And remember that some 38 million Americans are so ethically and emotionally fragile that they will easily fall under the spell of the psychopaths. That is, if directed to beat up members of minorities, they will gladly do so.

“Since about a third of psychopaths can now be diagnosed with an MRI for brain abnormalities, maybe it is desirable that candidates for high office in business and government be scanned: Psychcentral writes, a “study found that [cold-blooded psychopathic] offenders displayed significantly reduced grey matter volumes in the anterior rostral prefrontal cortex and temporal poles compared to [impulsive psychopathic] offenders and healthy non-offenders.”

“Until such scanning can be carried out, the safest thing is to assume that someone who talks and acts like a psychopath is one.

“You cannot reason with a psychopath, you cannot shame such a person or appeal to their better instincts. There is no point in writing open letters to them. The usual way of dealing with politicians who develop some wild ideas in the course of their search for voters and campaign funds will not work.

“The only thing you can do is recognize their damaged character and try to protect yourself and others from it. When they encourage minorities to be beaten up, we have to stop that. When they encourage universities to put professors on trial, we have to reject that. When they begin beating drums for war, we have to try to avert it. Pressuring the normal people in Congress can be done (they responded quickly to angry telephone calls about plans to weaken ethics requirements for people in congress).”