Not me, not me.

In his play about treachery and murder in medieval Scotland, Shakespeare made sure that I would never be able to shirk facing my own ambition and malevolence. He never thought to spare me, just as I did not spare the lives of others — or, in the end, my own life for that matter.

When I egged on my husband to kill the king, the kinsman we were hosting at our castle, I was the one who had to clean up afterwards, smearing the guards who slept by their liege so they would be blamed, I was the one who covered up the crime and made my man Macbeth supreme in our land.

Is this a dagger which I see before me, the handle toward my hand?

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And yes, the blood flowed onto me, too — out damned spot! Out, I say! — each gripping finger knowing that the red of that blood was staining more than the surface and the flesh, that it was staining what the soul would never forget. At least I owned the deed, the deaths, the dead. Who would have thought the old king had so much blood in him?

At least I was never petty or boring. And, of course, what’s done is done. I risked the haunting and the madness and the blotches that would never come out. Something dire in me must have known that I was risking damnation, too.

That counts in this place where I have been tasked with dealing, night after thick night — there is no day here, only night that never finds the light — without a glimmer to brighten our way, save for red. It is always dripping red for those like me, as it will be for you, Clarence Thomas, and you, too, Ginni, year after grisly year. Years here are no more than infinite stretches of redness in the dark of infinite night, trickling second by second from each of the smoking wounds we inflicted. I have been tasked here, I who was once a queen, with waiting for you and your wife to join me on this journey.

Ginni Thomas, Lobbyist for Donald Trump and Extreme Election Denier, Gets What’s Coming to Her

Oh, I know something about wives and accomplices, partners in bed and partners in crime. I know something, Ginni, about goading the man on, to bed, to bed, to bed. I know about denying reality — an election in your world, something different in mine — and calling for an insurrection. I know how a woman (like a man) can stop the access and passage to remorse, and the greed, greed, greed that never stops.

Clarence and Ginni, listen to what awaits you.

It starts with the stench.

That is how you will be greeted by each of those children cut down so early, so early.

There will, in due course, be women and men aplenty as well, shot down in a harsh crimson carnage in their homes and in shops, on spattered streets and on spattered lawns. There will be time enough for you to meet them, one by one by one.

But first the children, the corpses of the children. They will be there for you to smell when I open the portals of this afterlife for you — for you and, someday, the five others like you in their black (or do I now mean scarlet?) robes. The boys and girls have been waiting patiently, their limbs riddled with the bullets you allowed, the ones you celebrated, each child and all of them together forecasting your future henceforth. Hollowed-out eyes and amputated stumps, collapsed lungs and gouged lips. I know, I know, you will try to look away — as you did on Earth, Clarence, as you did, too, Ginni. You were such weaklings, unwilling to face what you had done, letting others bear the burden, the keen knife of your sanctimonious words, refusing to accept the wounds you made. This time, you will not be able to look away from what you have wrought. Do not think the immunity you granted to a high-ranking criminal, making him king, will extend to you.

Though what you should really fear is not the gore, but something smaller and more dangerously devouring, not that easily dismissed.

A bullet, just one bullet, that is enough to slice the thread of life.

Think, then, of the 98 bullets you allowed to be fired automatically in seven seconds, think of the bump stocks you made legal, think of the sound and the fury of those never-ending shots resonating in the toil and trouble of your mind.

Who Sows Bullets Reaps a Whirlwind of Death

You will be squeezed into each lethal projectile and then into a second, a third, a fourth, and on, and on, and on. You will be in the barrel and dart through the air. You will be the metal that severs the artery, punctures the heart, rips, and carves, and explodes, and cracks, dashes the brain like that of a newborn babe, over and over and over again. And then, from within that body as it twitches in its last moments, you will witness and experience the sudden death of a child never given the grace of being garlanded with goodbyes, and then… and then, yet another child, one more boy, one more girl, like babes strangled in the cradle. And then and then and then, you will be inside the grieving parents and sisters and brothers, aunts and uncles, cousins and nephews, and inside those who were never born because the child who had done not the slightest harm, who would someday have been a father or a mother died too soon, way too soon. Yes, this is the endless sorrow you will inhabit from now on.

What you can no longer disavow, not in this place, not anymore is the life that girl or boy did not live, the one who wanted to plant trees, who wanted to dance, who dreamt of a world better than ours.

I know how you will feel because that is the sort of vision that drove me mad, that was what my hands forced me to see while I was still alive, the price I began to pay before I died. That is what broke my already broken heart, and that counts for something here.

I thought I could escape. I thought that, by turning the knife on myself, I could escape.

You will learn soon enough that no such escape is afforded us, not you, not me, to jump the life to come.

Not a trace of the milk of human kindness will be granted to those like you in this place where even lightning, thunder, and rain are clothed in red, where faces are torn to pieces that will drip on both of you in the bubbling cauldron of forever. No luxury trips this time around, Clarence, no weeks on a superyacht paid for by a corrupt billionaire, no immunity at all.

I can already hear you complaining, and you, too, Ginni. Of course, you will claim that you pulled no triggers, that the blood, spilled by others, had nothing to do with you, that guns don’t kill people, people do. Oh, such petty, boring platitudes.

Do not whine, Clarence. What’s done is done. What’s done cannot be undone. You are, in fact, lucky to have drawn me as your supervisor here in the halls of the hereafter.

Martin Luther King and Thurgood Marshall Join the Fray

You could have been assigned to Martin Luther King or Thurgood Marshall. There were others, so many others who had been damaged in such myriad ways by what you decreed, all of them so excited at the prospect of getting their hands (and more than their hands) on you, but it was those two, Thurgood and Martin, who petitioned the Supreme Law that rules this realm, asking to take charge of you when you crossed that river of justice — you who called yourself a Justice. They had plans for you. They had spent a rack of hours discussing each excruciating detail of what you deserved as a traitor to your kind. Even I shuddered when I listened to what they were concocting, those two men who had always shown such mercy while they were alive, who were forged in the winds of forgiveness. I dare not even mention what they wanted you to endure, you and your greedy Ginni, the doom they imagined for you.

So better you should stick with me, just as I am stuck with you, as we will be stuck with each other for all eternity. And do not think — not for a moment — that I am in any way fond of the thought of spending the eons ahead with you and your clawing spouse and the serpent under her tongue. And yet I refuse to be relieved of this task. This is my own punishment for my delinquencies, my horrors, my spots from hell — to devote every second from now on to you and Ginni, two cowards who did not themselves wield those guns from hell but let others do it for you, who did not taste the blood that would be shed, who feigned innocence with false hearts and false faces while wreaking havoc on so many people, including the voters of your land.

What Lies Ahead Tomorrow, and Tomorrow, and Tomorrow

So come to me.

Come to me and sleep no more.

They are waiting for you in this blanket of darkness, the lives unlived, the worlds never experienced. Come to us, Clarence and Ginni, here on this side of death. Step into this fog and filthy air where no water will clear us of our deeds, where all the perfumes of Arabia will not sweeten your hands or raze the written troubles of your souls.

This is what you will inhabit. This is your fate, and the fate of so many others like you on the other side of death, tomorrow, and tomorrow, and tomorrow, to the last syllable of recorded time.

Something wicked this way comes.

Copyright 2024 Ariel Dorfman

Via Tomdispatch.com

In an appalling finale to the Court’s term, the conservative majority — three of whom were appointed by Trump — said that “official acts” that are central to the presidency are given “absolute immunity.” Other acts, even those at the “outer perimeter” of a president’s official duties, are “presumptively immune,” making them extremely difficult to prosecute. What is truly startling is not only the protection the Court has afforded Trump, but the unrestricted power it has granted him and his successors for whatever malice they might do in the future.

The majority opinion is “the most sweeping judicial reconstruction of the American presidency in history,” writes Princeton Professor of American History Sean Wilentz. Securing the monumental disgrace of the John Roberts Court, it has “seized the opportunity to invent, with no textual basis, a decision so broad that it essentially places the presidency above the law” and “invests the presidency with quasi-monarchial powers.”

The Justices have essentially legalized a losing president refusing to leave office. The defeated president can use his presidential authority to find an “official” pretext for remaining in office. While aspects of the Constitution and the Framers’ intentions are debatable, the Founders of the United States certainly did not design a constitutional system of checks and balances that established a government that would allow someone to declare themselves president for life if they felt like it.

Yet that is what the Supreme Court decision enshrines. In authoring the opinion, Chief Justice John Roberts often sounds like Trump’s lawyer rather than the impartial judge he pretends to be. He only provides a vague distinction between official and unofficial presidential acts, thereby bestowing full authority for any president to commit crimes up to and including assassination and treason with virtual impunity from criminal prosecution, as long as he can justify those crimes as part of his “official” duties.

By basing the possibility of any prosecution on this distinction and by then making that distinction virtually impossible to discern, Roberts eliminates any chance of resolving the underlying legal issues of Trump’s current federal prosecution before Trump has a chance to take power again. “The majority’s dividing line between ‘official’ and ‘unofficial’ conduct narrows the conduct considered ‘unofficial’ almost to a nullity,” writes Justice Sonia Sotomayor in her blistering dissent.If Trump wins, he can then — exercising the power of “absolute immunity” that the Court has conferred— dismiss the criminal investigations against him.

Roberts’s opinion illustrates just how broad this immunity will be in practice. He claims, for example, that Trump is absolutely immune from prosecution for any discussions involving Justice Department officials — even when he urged Justice Department officers to pressure states to “replace their legitimate electors” with fraudulent members of the Electoral College who would vote unlawfully to install Trump for a second term. Trump is absolutely immune from prosecution even when he told the Justice Department, “Just say that the election was corrupt and leave the rest to me and the R. Congressmen.” If Trump had ordered the Justice Department to arrest every Democrat who holds elective office, he could not be charged with a crime as this is considered “official” conduct.

Juan Cole, Digital Image, Dream/ PS Express, 2024

Fallout from the Trumpist Court giving its MAGA master royal immunity was immediate. Judge Juan Merchan put on ice Trump’s July 11 sentencing for 34 felony convictions because the Court decision could absurdly be used to define some of Trump’s actions as “official” acts. Though ridiculous on its face, the signing of the hush money checks to pay off a porn star to influence an election occurred inside the White House Oval Office, so this pay-off might be an “official” act.

Further, the ruling will remand Trump’s election subversion case, brought by Special Counsel Jack Smith, back to Judge Tanya Chutkan, in the D.C. District Court, to sort out what, if anything, is left of the indictment. Chutkan had previously rejected, and offered a sweeping condemnation of Trump’s immunity argument — one that constitutional law professor Michael Dorf also called “crazy.” The process will take lots of time and any ruling can be appealed, so the case will not go to trial before the election.

In the very week that the nation celebrated its founding, the Court undermined the reason for the American Revolution by giving presidents what Judge Sotomayor called a “law-free zone” in which to act, thus taking a leap toward restoring the monarchy that the Declaration of Independence rejected. The entire purpose of the Constitution was to create a government that was not bound to the whims of a king. Almost 250 years later, the Court’s self-styled “originalists” have put a crown within Trump‘s reach.

Presidents can still be impeached for their crimes in office, but it is hard to see how they can ever be prosecuted. The ruling creates a series of “nightmare scenarios” for what a president is legally allowed to do, writes Justice Sotomayor. “Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organize a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune, immune, immune.” She added: “The relationship between the president and the people he serves has shifted irrevocably. In every use of official power, the president is now a king above the law.”

Though the Court left open the possibility of prosecuting Trump for “unofficial acts” — such as, his conniving with campaign officials, it also implied that nothing a president does can be called unofficial. For example, the Extreme Court ruled that a president’s communications with the public likely fall “comfortably” within at least the “outer perimeter” of his official acts. And, in a another twist of the legal knife, the majority ruled that Trump’s “official” acts could not even be introduced as evidence in a trial against him.

That last twist was too much even for ultra-right Justice Amy Coney Barrett, who refused to join the majority in the ruling on evidence. She gave the example of how hard it would be to prosecute a president who takes a bribe for an official act. “The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable,” she wrote. But the decision of her five fellow-extremists would require such blindness.

The ruling even said that courts could not evaluate a president’s “motives” in determining criminal accountability. Considering an alleged criminal‘s motives is exactly “what the Constitution itself plainly calls for,” writes Yale University Constitutional Law Professor Akhil Reed Amar. “Essentially, the Court in Trump v. United States is declaring the Constitution itself unconstitutional. Instead of properly starting with the Constitution’s text and structure, the Court has ended up repealing them.”

Summing up the question of whether a former President enjoys immunity from federal criminal prosecution, Justice Sotomayor writes in her dissent, “The majority thinks he should, and so it invents an atextual, ahistorical, and unjustifiable immunity that puts the President above the law.” For a conservative majority that pretends to rely on historical precedent, the newly created standards are remarkable for their lack of basis in the Constitution, law or any precedent of the court. The immunity standards are pure fabrications.

The Supreme Court has intervened directly in the 2024 presidential campaign by shielding Trump from being tried on major federal charges before the November election. No previous Supreme Court has protected a political candidate in this way. This outcome benefits the Court’s preferred presidential candidate by defacing beyond recognition the Constitution and the concept of democratic self-determination. Trump poses a unique threat to constitutional government, but it’s one that the Trumpist Judges just happen to support. These aren’t Justices, they’re Trump cronies.

The outcome of the Court’s majority runs counter to the long-settled understanding of a president’s exposure to criminal prosecution, regardless of whether his acts were considered “official.” That understanding endured until last week. The outstanding example in living memory is the case of Richard Nixon, who accepted a pardon from President Gerald Ford to avoid criminal prosecution. Nixon accepted the pardon for his role in the Watergate scandal because everyone agreed that his actions were legally prosecutable. Yet Nixon’s criminal behavior could easily be misconstrued by the Roberts Court as official acts.

As the Nixon pardon made clear 50 years ago, the country understood well that ex-presidents could face trial for their crimes in office. Last Monday, the court radically redefined the settled understanding of the liability of ex-presidents, an opinion that contradicts the entire notion of a government based on the rule of law. The president can violate the law, exploit the trappings of his office for personal gain, and use his official power for malevolent ends. We want a president that is bold and fearless, even if he breaks the law in doing so. That is the majority’s terrifying message.

We have entered the era of the imperial presidency as well as the era of the “Imperial Supreme Court” as Stanford law professor Mark A. Lemly calls it. In casting aside the text, structure and history of the Constitution in favor of vague concerns about the need to “enable the president to carry out his constitutional duties without undue caution,” the Court reveals that it will rule — and rule us all — based on its own free-floating and distorted vision of an optimal constitutional order.

The immunity ruling reflects a massive Supreme Court power grab that is also evident in the recent Loper Bright decision that overturned a 40-year-old precedent — the Chevron deference. The decision took judicial power over federal agency regulations — transferring policy-making authority from agency experts to a judiciary that lacks the personnel and expertise to evaluate the overwhelming array of policy questions that arise from legal ambiguity. 

The court’s three liberals denounced the ruling as a threat to American democracy by an un-elected branch of government. “A longstanding precedent at the crux of administrative governance thus falls victim to a bald assertion of judicial authority,” Justice Elena Kagan wrote in her dissent. “The majority disdains restraint, and grasps for power.”

In a further condescending flaunting of their power, Justices Thomas and Alito refused to recuse themselves from decisions related to any January 6 cases. Thomas’s wife — lawyer and activist Ginni Thomas — denounced the “fascist left” and posted on Facebook “love MAGA people!!!” on January 6. Connected to Trump’s coup attempt, she was implicated with the fake elector schemers in Arizona. Alito — a flag-flying Christian Nationalist — is openly aligned with the Big Lie traitors, having allowed the upside-down American flag, the “insurrection flag,” to be flown in his yard during the 2021 Capitol violence.

The anti-democratic determination by these Trump-supporting, Supreme Frauds could not come at a more dangerous time for democracy. The ruling has removed a major check on the office of the presidency at the very moment when dictator-for-a-day Trump is running for office on a promise to weaponize the apparatus of government against those he views as his enemies. The Trumpified Court’s decision that grants imperial powers to a future unscrupulous President Trump has raised the stakes of the election tremendously, and they were already too high. If Trump wins, he will have the presidency Nixon wanted, one in which nothing the president does is illegal.

The Court’s decision inflates the significance of Biden’s political self-immolation at the recent debate, in which the President spent much of his 90 minutes on stage staring into the middle distance, mouth agape, reiterating “the very idea” as if he was surprised and stunned by Trump reeling off lie after lie and insult after insult as he has done for years. When Biden did speak, his voice was shaky, and he sometimes lost his train of thought. Biden’s meltdown increased the wannabe tyrant’s chance of winning, according to the liberal Brookings Institute.

Now, while the convicted GOP candidate has been invested by the MAGA court with kingly powers, the Democrats are dithering about whether their impaired candidate is the best person for the job of running against the felon. The Court decision shows — if voters did not know it before — the incredible importance of putting progressive justices on the Supreme Court.

The next president might very well get two appointments to the Supreme Court — Thomas is 76 and Alito is 74. If a Democrat wins, he or she might possibly appoint two replacement justices that would return the court to a liberal majority, 5-4.  If Trump wins, the 6-judge majority will be chosen by a racist mob boss and the Christo-fascist Federalist Society.

The Trump Court’s decision is not only a grant of immunity for past crimes, but is also an  enthusiastic endorsement of the despotic power that Trump has vowed to assert. Promising “retribution” against his opponents, he will turn the Justice Department against critics. For example, he wants to subject Liz Cheney to a televised military tribunal on uncertain charges. Trump also said that he “has every right to go after” Joe Biden and his family. 

The Supreme Court essentially gave him the green light to do that as part of his “official” duties. The combination of new judicially invented presidential immunity and the longstanding pardon power means that a future Trump White House could become the site of a criminal enterprise that would make Richard Nixon’s Watergate Scandal look trivial.

Raging xenophobe Trump promises that he will set up vast camps and illegally deport millions of people from the U.S. He could invoke the Insurrection Act and use troops to lock down the southern border or crush protests. He’d stretch the powers of the presidency in ways not seen in our lifetime. He says this consistently and clearly — so it’s not conjecture.

The Supreme Court has radically changed the very structure of American government paving the way for MAGA authoritarianism. Though mind-bogglingly insane, a moronic conman has used his vile narcissism and pathological mendacity along with a maniacal cult to put him on the verge of having complete control of all three branches of the U.S. government. We need a France-like, anti-authoritarian voter turnout to stop the Gangster President.

(The Conversation) – The Supreme Court has ruled that the Eighth Amendment to the U.S. Constitution does not prohibit cities from criminalizing sleeping outdoors.

City of Grants Pass v. Johnson began when a small city in Oregon with just one homeless shelter began enforcing a local anti-camping law against people sleeping in public using a blanket or any other rudimentary protection against the elements – even if they had nowhere else to go.

The court confronted this question: Is it unconstitutional to punish homeless people for doing in public things that are necessary to survive, such as sleeping, when there is no option to do these acts in private?

In a 6-3 decision written by Justice Neil Gorsuch, the court said no. It rejected the claim that criminalizing sleeping in public by those with nowhere to go violates the Constitution’s prohibition on cruel and unusual punishment. In my view, the decision – which I see as disappointing but not surprising – will not lead to any reduction in homelessness, and will certainly result in more litigation.

As a specialist in poverty law, civil rights and access to justice who has litigated many cases in this area, I know that homelessness in the U.S. is a function of poverty, not criminality, and that criminalizing people experiencing homelessness in no way helps solve the problem.

“Criminalization,” by Juan Cole, Digital, Dream/ Dreamworld v 3, PS Express, 2024..

The Grants Pass case

Grants Pass v. Johnson culminated years of struggle over how far cities can go to discourage homeless people from residing within their borders, and whether or when criminal sanctions for actions such as sleeping in public are permissible.

In a 2019 case, Martin v. City of Boise, the 9th U.S. Circuit Court of Appeals held that the Eighth Amendment’s cruel and unusual punishment clause forbids criminalizing sleeping in public when a person has no private place to sleep. The decision was based on a 1962 Supreme Court case, Robinson v. California, which held that it is unconstitutional to criminalize being a drug addict. Robinson and a subsequent case, Powell v. Texas, have come to stand for distinguishing between status, which cannot constitutionally be punished, and conduct, which can.

In the Grants Pass ruling, the 9th Circuit went one step further than it had in the Boise case and held that the Constitution also banned criminalizing the act of public sleeping with rudimentary protection from the elements. The decision was contentious: Judges disagreed over whether the anti-camping ban regulated conduct or the status of being homeless, which inevitably leads to sleeping outside when there is no alternative.

Grants Pass urged the Supreme Court to abandon the Robinson precedent and its progeny as “moribund and misguided.” It argued that the Eighth Amendment forbids only certain cruel methods of punishment, which do not include fines and jail terms.

The homeless plaintiffs did not challenge reasonable regulation of the time and place of outdoor sleeping, the city’s ability to limit the size or location of homeless groups or encampments, or the legitimacy of punishing those who insist on remaining in public when shelter is available.

But they argued that broad anti-camping laws inflicted overly harsh punishments for “wholly innocent, universally unavoidable behavior” and that punishing people for “simply existing outside without access to shelter” would not reduce this activity.

In today’s decision, the court rejected the city’s invitation to overrule the 1962 Robinson decision and eliminate the prohibition on criminalizing status, but denied that being homeless is a status. Instead, the court agreed with the city that camping or sleeping in public are activities, not statuses, despite the plaintiffs’ evidence that for homeless people, there is no difference between criminalizing “being homeless” and criminalizing “sleeping in public.”

The decision is surprisingly thin on Eighth Amendment analysis. It declines to engage with plaintiffs’ arguments that criminalizing sleeping imposes disproportionate punishment or imposes punishment without a legitimate deterrent or rehabilitative goal.

Instead, the court returned over and over to the idea that the 9th Circuit’s decision required judges to make impermissible policy decisions about how to respond to homelessness. The court also extensively cited friend-of-the-court briefs from cities and others discussing the difficulties of addressing homelessness. Significantly, however, neither these briefs nor the court’s decision cite evidence that criminalization reduces homelessness in any way.

In a strong dissent beginning “Sleep is a biological necessity, not a crime,” Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, quoted extensively from the record in the case. The dissent included some shocking statements from the Grants Pass City Council, such as “Maybe [the homeless people] aren’t hungry enough or cold enough … to make a change in their behavior.”

Sotomayor noted that time, place and manner restrictions on sleeping in public are perfectly permissible under the Ninth Circuit’s analysis, and that the inevitable line-drawing problems upon which the majority dwells are a normal part of constitutional interpretation. She also observed that the majority’s contention that the Ninth Circuit’s rule is unworkable was belied by Oregon’s own actions: in 2021, the state legislature codified the Martin v. Boise ruling into law.

A national crisis

Homelessness is a massive problem in the U.S. The number of people without homes held steady during the COVID-19 pandemic largely because of eviction moratoriums and the temporary availability of expanded public benefits, but it has risen sharply since 2022.

Scholars and policymakers have spent many years analyzing the causes of homelessness. They include wage stagnation, shrinking public benefits, inadequate treatment for mental illness and addiction, and the politics of siting affordable housing. There is little disagreement, however, that the simple mismatch between the vast need for affordable housing and the limited supply is a central cause.

Crackdowns on the homeless

Increasing homelessness, especially its visible manifestations such as tent encampments, has frustrated city residents, businesses and policymakers across the U.S. and led to an increase in crackdowns against homeless people. Reports from the National Homelessness Law Center in 2019 and 2021 have tallied hundreds of laws restricting camping, sleeping, sitting, lying down, panhandling and loitering in public.

Under presidents Barack Obama and Joe Biden, the federal government has asserted that criminal sanctions are rarely useful. Instead it has emphasized alternatives, such as supportive services, specialty courts and coordinated systems of care, along with increased housing supply.

Some cities have had striking success with these measures. But not all communities are on board.

Pushing people out of town

I expect that this ruling will prompt some jurisdictions to continue or increase crackdowns on the homeless, despite the complete lack of evidence that such measures reduce homelessness. What such laws may well accomplish is to push the issue into other towns, as Grants Pass officials candidly admitted they sought to do.

The decision will likely put even more pressure on jurisdictions that choose not to criminalize homelessness, such as Los Angeles, whose mayor, Karen Bass, has condemned the ruling. While this ruling resolves the Eighth Amendment claims against sleeping bans, litigation over homeless policy is doubtless far from over.

This is an updated version of an article originally published April 17, 2024.

Clare Pastore, Professor of the Practice of Law, University of Southern California

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

( Tomdispatch.com ) – Officials and election experts are now struggling in a big-time way. How, they wonder, can they effectively address mounting threats — of violence, election denialism, foreign influence, and voter discrimination? Do they run the risk of alarming the public to the point of reducing voter turnout? Are there reasons to assuage fears about either election disinformation or possible election interference in 2024? Standing in Pointe du Hoc, France, to mark the anniversary of D-Day, President Biden told the world that those who fought in that pivotal battle are “asking us to do our job: to protect freedom in our time, to defend democracy.” Election security would be a good place to start.

Perhaps one way to assess the question of election stability and security in 2024 is to ask: How different is this election from earlier tumultuous ones in American history?

What, if any, lessons can we draw from the past? Or are we in genuinely uncharted territory today? 

In truth, when it comes to presidential elections, this country has faced some frightening moments in its history, ones that touch on a number of the fears that confront us today. We may never have faced the likes of Donald Trump, but we have experienced disputed vote tallies, Supreme Court interference, threats of violence, voting rights restrictions, and a lack of confidence in the process itself.

Contested Elections

Donald Trump has made no bones about it. Should he lose the coming election, he reserves the “right” to refuse to accept the results. In 2020, his denial of the results led to a violent attempt to block Congress from certifying the vote on the following January 6th. To date, any accountability for his past actions has been minimal. Found guilty last month of falsifying business records to conceal election law violations in 2016, he has yet to be sentenced and may well appeal all the way up to a sympathetic Supreme Court. Moreover, he hasn’t been tried yet in Georgia and in federal court in Washington, D.C., on significantly more serious criminal charges about ways he and his followers tried to subvert the results of the 2020 election — and he’s unlikely to be before the November elections. 

Most Republicans have remained at his side. Indeed, election denialism has become a rallying point rather than a mark of shame. As a result, the former president continues to engage in implied threats to the democratic political process with unwavering partisan support. And were he to disappear from the political scene thanks to a decisive defeat in 2024, others could follow him in exploiting the democratic system for political gain.

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While there have been a handful of disputed presidential election results since the country’s founding, two stand out. In the election of 1876, Republican Rutherford B. Hayes lost the popular and electoral vote to Samuel Tilden. The Republicans protested that, in three states, the results were uncertain. To resolve the issue, Congress created a bipartisan panel, including House and Senate representatives and five Supreme Court justices. That panel then granted Hayes all 20 disputed electoral votes, giving him a one-point electoral margin over Tilden, and so making him president. Ultimately, the country found a way forward.

More than a century later, in the 2000 election between Republican George W. Bush and Democrat Al Gore, the results again lay in dispute. Gore had won the popular vote, but the electoral vote was too close to call. All eyes focused on Florida where the results would determine the outcome. Although the Florida Supreme Court ordered a statewide recount, the Supreme Court stopped it and, in doing so, made Bush president.

In neither post-election resolution did the losing candidate contest the results, though Tilden waited four months before conceding. The day after the Supreme Court’s decision, Gore conceded, saying, “I accept the finality of this outcome” — a stark contrast to Donald Trump who still refuses to concede that the 2020 election result was legitimate.

It’s worth mentioning that both elections had major consequences. Hayes’s win, the result of a brokered deal, also ended the post-Civil War Reconstruction era and led to the withdrawal of U.S. troops from the South. That election would prove an integral part of efforts to undo the biggest push the nation ever had to achieve racial justice.

The Bush administration, in turn, failed to prevent the attacks of September 11, 2001, and then launched a multidecade-long “war on terror” that would destabilize parts of the globe from South Asia to the Middle East and Africa, while, according to the Costs of War Project, leading to the deaths of more than 7,000 American service members and more than 177,000 allied military and police in conflicts ranging from Afghanistan and Pakistan to Iraq and Syria, not to mention the deaths of more than 430,000 civilians.

Along with the knowledge that uncertainty can accompany election results, Americans sense as well that violence could indeed loom in as yet unknown ways, thanks to Election 2024.

Violence Before, During, and After an Election

It’s not that Americans have never experienced the threat of violence around elections. The Civil War years saw numerous outbreaks of violence. In 1861, a mob of Confederate supporters tried to gather to storm Congress to stop the certification of Abraham Lincoln as president. There was no violence only because General Winfield Scott, a southerner, made sure the Capitol was protected.

So, too, in 1868, in the runup to the first election of the Reconstruction era between Ulysses S. Grant and Horatio Seymour, Ku Klux Klan violence led to thousands of murders in Georgia, Kansas, and Louisiana, and threats of violence kept voters away from the polls in droves. In the 1876 Tilden-Hayes election in which four states submitted multiple slates of electors to Congress, one popular slogan was “Tilden or Blood.” Expecting violence, President Grant secured the Capitol with troops and prepared to deploy them elsewhere as well.

And then (as now), race and violence were a distinct issue. In 1873, white mobs assaulted a courthouse in Colfax, Louisiana, to remove pro-Reconstruction Republican officials. In 1898, a horde of white North Carolinians conducted a coup against the fusionist government of the city of Wilmington to empower reactionary southern Democrats.

During the last part of the nineteenth and early twentieth centuries, southern Jim Crow laws imposed in response to Reconstruction produced literacy tests and poll taxes that disenfranchised Black voters. And in the twentieth century, racially motivated violence aimed at suppressing the vote became a regular part of election politics.

During “Freedom Summer” in 1964, three civil rights workers — James Chaney, Andrew Goodman, and Mickey Schwerner — were killed by white terrorists for participating in Black voter registration initiatives in Mississippi. When demonstrators were assaulted by police and white mobs on the Edmund Pettus Bridge in Alabama during a nonviolent march on March 7, 1965, in support of voting rights legislation, the nation witnessed just how much brutality then existed when it came to those seeking to fulfill the nation’s democratic promise.

Twenty-First-Century Challenges

Experts anticipate a surge of violence at the polls in 2024. A Brennan Center survey found that, since 2020, “38 percent of local election officials experienced threats, harassment, or abuse for doing their jobs.” To counter this, the federal government and individual states have already mounted efforts intended to protect both voters and officials. Since 2020, in fact, the Department of Justice, the Department of Homeland Security, and Congress have ponied up an extra $205 million for election protection. And yet, as the Brennan Center points out, a growing fear of violence and harassment has led to “an exodus from the field” of election work. Not surprisingly, a recent Ipsos/Reuters poll reported that two out of three Americans are concerned about the prospect of election violence in 2024 and fear the possibility of a worse version of the January 6th insurrection at the Capitol.

Violence at the polls has, in fact, plagued elections throughout the nation’s history, as Steven Hahn recounts in his new book, Illiberal America, while the Voting Rights Act of 1965 proved to be fragile indeed, as red states continued to put voting restrictions in place based on false allegations of voter fraud.

Worse yet are the threats already emanating from former president Trump and Republicans close to him. The embrace of such anti-democratic sentiment by such a potentially powerful figure and his party at a time when global anti-democratic forces are on the rise has already created an historically rare level of instability in this country.

And keep in mind that not all the dangers of this moment have a footprint in the American past. There are new challenges that face the nation today. Disinformation is a case in point.  While false information has always been a part of politics — smears against alleged communists were, for instance, a staple of the early Cold War years — the Internet has proven a game-changer when it comes to facilitating false narratives that could lead to both voter suppression and a deep mistrust of election results.

The scale and scope of disinformation in the modern age has no precedent. Without editorial control and given the ease of disseminating misinformation, guardrails have crumbled. Experts warn that the massive communications infrastructure that transmits bad information could undermine confidence in election results in ways never before seen. Worse yet, Artificial Intelligence (AI) is likely to prove a particularly dangerous mechanism for producing electoral deepfakes.

Additionally, foreign interference seems now to have become a permanent feature of American elections, although to what end remains in question. As the 2019 report issued by Special Counsel Robert Mueller demonstrated, Russia’s attempts to interfere with the 2016 election, including conducting “information warfare” and attacking voter databases, proved “sweeping and systematic.”

Where Are We Today?

When it comes to elections, despite Donald Trump, it’s not been all downhill. In 2021, the Department of Justice launched an Election Threat Task Force aimed at individuals who posed threats to election workers. To date, 17 people have indeed been prosecuted. Significantly, in 2022, Congress passed the Electoral Count Reform Act, an attempt to update the Electoral Count Act of 1887 and improve the process of certifying the vote, ensuring that the transition period between election day and inauguration day goes smoothly. In addition, in 2022, Congress passed legislation to establish a Foreign Malign Influence Center to counter disinformation from overseas generally, not just in elections.

The federal courts have also proven to be barriers against electoral subversion. In the wake of the 2020 election, they repeatedly denied Donald Trump success in his efforts to overturn the results. Yet even this source of democratic protection has been limited, while the present all too conservative Supreme Court, which in 2013 gutted the Voting Rights Act, has continued to weaken voter protections.

The question then remains: What do the lessons of history — and recent reforms — tell us about our current moment? On the one hand, history suggests that election dysfunction has been overcome time and again. Whether we’re talking about contested results, challenges to voter suppression, outbreaks of violence, or presidents elected without national majorities, such situations have been resolved reasonably successfully in the past. Meanwhile, new measures have been put in place for the security of election workers, the certification of the vote, and the deterrence of voter suppression in new ways. In other words, American democracy has continued, despite deeply rooted problems.

And yet, it’s also clear that past negative experiences have, in our moment, been twisted into newly dangerous configurations. In place of contested elections, there is now outright election denialism. In addition to racially motivated violence, there’s growing extremist violence aimed at the institution of voting itself. In place of partisan campaign rhetoric, we’re experiencing the spread of hate speech based on race, ethnicity, gender, or simply opposition to democracy itself. Instead of support for the outlawing of post-election violence, we now live with references to the imprisoned offenders of January 6, 2021, as “hostages.” And just because this country has survived challenging times in the past doesn’t mean it will do so again, particularly as pressure against democratic norms ramps up globally.

Many would blame such election instability on Donald Trump alone and there’s no question that he does have a profound knack for manipulating public discourse and threatening to upend election laws, not to speak of the rules, norms, and processes that underlie election legitimacy. However significant, though, he’s not the only factor that warrants attention in this election year.

The largest threats to our elections now come not from weaponized technology, or a tone-deaf Congress or Supreme Court, or even perhaps from Donald Trump himself (though dangerous he may be). The biggest challenge may lie in the absence of any long-term focus on the need for fundamental structural changes in how our elections are run.  For centuries, we as a nation have made incremental changes in response to moments of election-related crisis. But far more is needed if we are to escape a future in which questions about whether the electoral process itself is legitimate and whether the results will be accepted become part of every election season.

Our democratic system seems increasingly frail. To face the future with confidence in the most elemental building block of our democracy, we need a longer-term perspective. The elimination of the Electoral College, greater accountability for violence in and around elections, tools for curbing disinformation and improving election administration, a vast increase in funding for public education about polling sites and candidate platforms, strict accountability for attempted voter suppression, and heightened efforts to secure voting rights for all are badly needed. In other words, rather than facing a continual nip and tuck of problems as they appear, what we really need is a commission that will offer a full-scale rethinking of election security in the twenty-first century, while focusing on getting Congress to move toward developing a comprehensive new strategy to deal with it. Even if we get through the 2024 election cycle intact and violence-free, the task of election reform remains both essential and, sadly, all too ignored.

Perhaps, however, there could be a silver lining in our unnerving moment if our ongoing election troubles lead us to conclude that the time for keeping our fingers crossed should end and the time for wholesale reform begin.

Copyright 2024 Julian E. Zelizer and Karen J. Greenberg

Via Tomdispatch.com

For all the so-called “conservative” apoplexy about liberals “coddling” criminals, the SCOTUS is promoting and enabling more mass murders. What’s worse, going easy on non-violent offenders with rehabilitation programs, or enabling mass murder? The six “conservative” justices have employed a tortured brand of logic to arrive at the conclusion: that is unlawful to prevent a psychotic monster from enhancing a gun so he can kill more people more quickly. They don’t parse the language to decide this; they torture it.

Can we please stop calling these people “conservative?” When I served as a congressional intern for Rep. Robin Beard (R-TN) in 1973, I disagreed with him on almost everything. So, he assigned me to do research at the Library of Congress to develop position papers from a liberal POV, so he could construct countering arguments on topics such as school vouchers. But Beard was an honorable conservative; protecting and defending the Constitution, though he was one of Richard Nixon’s last defenders. He promoted a strong US military, and supported NATO and other alliances. He defended Medicare and other social programs up to a limit. He valued life over firearms, though we both enjoyed target practice. He was fervently anti-Communist, though not an isolationist. Conservatism used to mean being a stickler about a balanced budget, but maintaining a strong tax base to do so. The Republican anti-tax fever arose under Ronald Reagan, abetted by Proposition 13 in California, and the Headley-Tisch amendment in Michigan in 1978. The six justices who voted to allow bump stocks are not conservative by any measure or metric; they are far-right wing ideologues, with an agenda to remake this country in alignment with the increasingly ascendant GOP Fascist model.

The Young Turks Video: “People Will DIE Because of This SCOTUS Decision”

Don’t look now, but the Supreme Court of the United States is now officially to the right even of Donald Trump, and that is saying something. Golden State Warriors basketball Coach Steve Kerr is one of the nation’s most fervent anti-gun spokesmen. Kerr lost his father, Prof. Malcom Kerr, to a political assassination in Lebanon in 1984, where he had been president of American University-Beirut. Yet, he agreed with Trump ONCE, on the need to banish the bump-stock.

Even Trump recognized the sense behind banishing bump stocks from firearms, in the wake of the 2017 Las Vegas concert massacre; and offered an unusually lucid statement, “There’s a great appetite, and I mean a very strong appetite, for background checks. … I think background checks are important. I don’t want to put guns into the hands of mentally unstable people, or people with rage or hate, sick people. I’m all in favor of it.” As SF Chronicle columnist Scott Ostler noted, “That passionate support for gun-safety legislation lasted as long as a cheeseburger on Trump’s lunch plate,” and Kerr formally endorsed Joe Biden this week. No major league sports coach has ever publically endorsed a presidential candidate before, though Kerr’s mentor San Antonio Spurs Coach Gregg Popovich, has been equally outspoken on gun control and many political issues. Can I get a hizzah for Popovich-Kerr in 2028?

Republicans began trying to cripple the functions of government under President Ronald Reagan. He popularized the notion that government is the problem, not the solution. Regulatory agencies exist to keep people safe, to assure clean water and air, to restrain monopolistic corporate behavior, to assure a safe food supply. Under Reagan, the Republican ideology began evolving away from the classic “conservatism,” to Trump’s ideology of chaos and cruelty. He was the first president to appoint people to cabinet positions and agency directorships, whose purpose was not to steward those agencies and departments, but to sabotage their basic functions and missions.

The SCOTUS reasoning was articulated by Clarence Thomas: The bump stock makes guns fire more rounds faster, but the court held that it’s still technically not a machine gun. They are wrong on the facts here.. Machine guns were originally banned in the US in 1934, but AR-15’s are the gun of choice for mass murderers. The Court struck down a 2018 ATF (Bureau of Alcohol, Tobacco & Firearms) ruling to arrive at this tortured conclusion.

It’s interesting that this case didn’t arise in a 2^nd Amendment challenge, but, “rather, it is one of several cases this term seeking to undercut the power of administrative agencies.” It’s an attack on the ability of government to govern effectively, to not only limit government, but cripple its basic functions. Their aim is to limit the protective reach of US government agencies, yet they say this is not ideologically driven. The case was brought by Texas gun store owner Michael Cargill, after he was forced to surrender two bump stocks in 2019. The issue was whether the Trump administration, through the ATF stretched the statutory definition of machine guns too far to cover bump stocks. 

Chief Justice John Roberts has set the stage for this ideological tilt, and “done everything he can to try to manipulate the process to avoid and block efforts by the Senate to hold the court accountable, to insist that it abide by just commonsense ethical rules that every other court in the country has to follow.” Sonia Sotomayor articulated the objections in a rare public dissent from the Bench. She summarized saying, “This is not a hard case. All of the textual evidence points to the same interpretation. Its interpretation requires six diagrams and an animation to decipher the meaning of the statutory text, and enables gun users and manufacturers to circumvent federal law.”

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.

Otherwords.org

Previously, I argued for the impeachment of Justice Clarence Thomas based on his own ethical reckless and brazenly partisan behavior. Justice Alito wears his political sentiments on the flagpoles of his two homes. Trump-appointed Justices Brett Kavanagh, Amy Coney Barrett and Neil Gorsuch all lied during their confirmation hearings, about their devotion to preserving Roe v. Wade. So five of the six-person majority in this decision have demonstrated serious ethical lapses, and expressed contempt for Congress. Chief Justice Roberts, appointed by George W. Bush, has run interference for all of them. Senator Mitch McConnell broke Senate rules, and used legislative sleight-of-hand to stack ALL the US courts with Republican appointees, while sabotaging appointees of President Barack Obama.

Alito and Thomas should be legally compelled to recuse themselves from any cases involving Trump or the January 6 defendants. Reps. Adam Schiff and Mike Sherrill have already demanded that Alito recuse himself. Rep. Steve Cohen introduced a motion to censure Alito for what he called, “a knowing and shameless demonstration of his political bias.” Cohen added, “What’s more, he continues to participate in litigation directly related to the 2020 election and the Insurrection, in direct violation of the federal recusal statute and the Supreme Court’s own ethics rules.” The censure motion would be raised if Alito refuses to recuse himself, as demanded by Congressional Democrats.

The same pressure must be applied to Justice Thomas, who has been just as arrogant in expressing his similar partisan preferences. Rep. Jamie Raskin called for a Federal Ethics Panel for the Courts, which Republicans are fiercely resisting. Alexandra Ocasio-Cortez demanded a Senate investigation into Alito saying, “Samuel Alito has identified himself with the same people who raided the Capitol on Jan. 6, and is now going to be presiding over court cases that have deep implications over the participants of that rally. And while this is the threat to our democracy, Democrats have a responsibility for defending our democracy. And in the Senate, we have gavels.”

The Young Turks Video: “You Won’t BELIEVE Justice Alito’s Latest Far-Right Flag ”

Alito’s behavior almost makes Thomas appear naïve and guileless. Both have the same “conflict” problem, having accepted lavish gifts and vacations from corporate titans with cases before the court. Now comes Mrs. Alito to argue that the inverted flag was a “distress signal,” because one of her neighbors had a yard sign that personally insulted her. No, that is for ships at sea in distress, or kidnapping victims. As The Guardian points out, “But these days it (inverted flag) is more often associated with activists making an extremist sign of protest, and at the time of the January 6 insurrection it had been adopted by some on the far right amid efforts, ultimately unsuccessful, to overturn Joe Biden’s 2020 election victory over Trump.”  She’ll say anything to deflect, divert, distract and obfuscate. That’s the Republican strategy when they’ve been called out and exposed for support to overthrow the US Government, and install Trump as President for Life. Just as Mrs. Thomas did.

The inverted flag was Alito’s first red flag. The “Appeal to Heaven” flag raised at his beach house is now the second. This illustrates an escalating trend of empowerment-entitlement, when coupled with Justice Thomas’ brazen vertical integration with Harlan Crow.  Republicans feel a misplaced sense of self-righteous justification, to dispense with ethical and legal boundaries that don’t help their agenda. It illustrates how elected and appointed Republican office holders and judges feel beholden to, and empowered by Trump, to dispense with the legal boundaries, as it suits their agenda.

Justice Alito holds enormous power to decide the fate of Trump and Democracy in the US. The expressions on his home flagpoles illustrate a clear “partisan” devotion to Trump over the Constitution. If he refuses to recuse himself, he should face impeachment. Same for Thomas. Not only can SCOTUS justices be impeached, but Alito and Thomas have made compelling cases that their abuses of standing and arrogance demands the process. Their ruling to allow a gerrymandered and racially motivated re-districting map to stand in South Carolina, illustrates the depth of the Republican “deep fix.” Their loyalties are no longer to the US Government and Constitution, but to Donald Trump and by extension, Vladimir Putin, Victor Orban and his other autocratic role models. Over 100 Republican Members of Congress voted to NOT certify the 2020 Election, out of fealty to Trump. Why shouldn’t they all be expelled according to House and Senate Rules, and the Constitution?

The Christian Nationalist movement fuels this dynamic, and piles on self-righteousness. Millions of Evangelicals have “anointed” Trump as their modern day King Cyrus, despite his deeply UN-Christian lifestyle. Why? Because he promised them to end legal access to abortion in the US, which is all they care about as a fast-track element toward Christian theocracy in the US. They want to believe he actually cares about that, though he paid at least one woman to have one. Six of the nine SCOTUS justices are devout, ideological Catholics, which comprise 20% of the US population. McConnell’s fear and devotion to Trump has given this minority outsized influence on our judicial system, with Alito and Thomas abusing their legal standing to make the US a Christian Theocracy, and Trump President-for-Life. Alito and Thomas must recuse or face impeachment; they drew the lines and raised the battle flags.

Putting aside the chain of events leading to this case, it is, in essence about how politics prevails over law. The focus of the questioning by the various justices centered on Trump’s official acts as president. To what extent are certain acts within a president’s official duties and which ones could be subject to criminal prosecution, committed while in office once the president leaves office? The questions were an effort to distinguish between those official acts within a president’s legal authority that are spelled out in the U.S. Constitution and non-official or private acts, which could be prosecuted after a president leaves office.

The justices’ questions centered on ahistorical, hypothetical examples. This line of questioning began with Justice Thomas asking what defines acts which are part of a president’s official duties? Justice Kagan expressed skepticism in her response to Trump’s attorney questioning whether impeachment and conviction are prerequisites before a president could face criminal charges. Her hypothetical question was “Let’s say a president who ordered the military to stage a coup, he’s no longer president, he wasn’t impeached. He couldn’t be impeached but he ordered the military to stage a coup. And you’re saying that’s an official act?” A similar question was asked by Justice Sotomayer, but it was whether a president could decide “that his rival is a corrupt person and orders the military or orders someone to assassinate him, is that within his official acts from which he can get immunity?”

In another series of questions, the justices paid attention to what could be the difference between absolute and limited immunity. In addressing the issue of absolute immunity, Justice Jackson asked about the significance of Nixon’s pardon, which implies that a president could be prosecuted for his actions while in office. From her line of questioning, she appeared skeptical of a president having absolute immunity. Based on the line of questioning from the conservative majority on the Court, there was a willingness to entertain some form of immunity. In particular, Justice Alito expressed his concern over the danger of an incumbent president who lost a reelection be in as being put in a “peculiarly precarious position,” at the mercy of a prosecution by the incoming presidential administration. It needs to be stated that Alito’s concern is at odds with the historical record.

It is in my view, quite surprising, not just that the justices are willing to overlook Trump’s actions while in office, but most importantly that they ignore what the historical record tells us about the question of presidential immunity. This is where Schmitt’s concept of sovereignty is relevant. Schmitt’s insight appears in his theoretical construction of how politics exercised by a sovereign prevails over law. What his theory of the sovereign tells us is how presidents over time have been immune from prosecution. This immunity is evident in what are obvious violations of national and international law. So while the justices with their hypothetical questions appear to wrestle with the concept of immunity for presidents, historical examples demonstrate the matter of presidential immunity is settled. With the exception of the Nixon administration, presidents have been immune from prosecution.

Andrew Kolin, Trump and Trumpism: The Destructive Politics of American Fascism, Rowman and Littlefield. Click here to buy.

That is because presidents have acted in such a manner that their political actions as sovereigns prevail over law over time. How so? A representative historical samples indicates that presidents have consistently violated national and international legal norms. One way to sidestep law is to declare a state of national emergency. This option fits into Schmitt’s reference to a sovereign deciding on the exception. For example, President Lincoln suspended habeas corpus during the Civil War. President Wilson clearly violated key provisions of the first amendment prior to and during World War I, with the support of Congress, enacting legislation that led to the passage of the Alien and Sedition Acts and the Espionage Act. These measures, in essence, made first amendment rights illegal.

During World War II, there was another political exception to the rule of law, with the confinement of Japanese Americans. In the 1950s, McCarthyism in the context of anti-Communist hysteria, undermined what are supposed to be civil liberties protections. Presidents Johnson and Nixon and Hoover, head of the FBI, made use of Cointelpro and undermined civil liberties while the Church Committee hearings exposed w the illegal actions of the Nixon administration and previous administrations. One significant result was a reform known as the Foreign Intelligence Surveillance Act (FISA), a noble effort to place legal restraints on how presidents made use of illegal surveillance, and yet over time the FISA courts led to illegal acts being ruled as legal.

Consider the response of the Bush administration to the attacks of 9/11. Under the guise of a “war on terrorism,” and given legal cover under John Yoo’s Office of Legal Counsel ruling, the U.S. government found the political means to torture, a clear violation of the Torture Convention, to which the U.S. was a signatory. There is ample evidence of torture practiced in Abu Ghraib and Guantanamo Bay. The question this: were any officials, including former President Bush, subjected to prosecution? The answer is no. In fact, President Obama wanted to move forward and not consider legal remedies, such as prosecution.

These examples point to the use of politics by a sovereign in a time of a declared emergency that serve to justify the sidestepping of the law, eliminating any potential for prosecution. Previous presidents have justified putting aside any possible legal restraints on the exercise of power by declaring states of emergency in either peacetime or wartime. Whatever the Supreme Court decides, presidents in the past have been able to make use of Schmitt’s exception to discard legal-constitutional limits so that presidents can act outside the law by justifying either a real or manufactured emergency and in so doing, become immune from prosecution.

What is unique is that Trump’s attorneys have requested that the Court rule to normalize immunity without any justification in relation to a declared state of emergency. If the Court rules to provide some form of immunity for Trump, it will be realizing Schmitt’s exception, which allows presidents to be completely above the law in all circumstances, acting, in essence, as fascist dictators.

—-

Featured image: “Donald I,” Digital, Dream/ Dreamworld v. 3, IbisPaint, by Juan Cole, 2024

The court was unanimous in determining that neither Colorado – which had banned Trump from the ballot – nor any other US state is qualified to decide on the eligibility of a presidential candidate. Furthermore, a majority opinion coming from the five conservative judges – three of them nominated by Trump himself – determined that only the US Congress can disqualify an individual from running for office on the grounds of insurrection.

This majority opinion, the three progressive judges in the minority warned, risked closing the door to any possible future US Supreme Court decision to ban an insurrectionist from becoming President. An indictment against Trump for his role in inciting the attack on the Capitol on January 6, 2021, is still possible but the Supreme Court would probably not act on it.

On the other side of the Atlantic, in Germany, media attention is focused on a judicial proceeding taking place in Münster, a city in the West of the country. At the core of the dispute, we find the far-right party “Alternative für Deutschland” (Alternative for Germany or AfD) and the “Bundesamt für Verfassungsschutz” (Federal Office for the Protection of the Constitution or BfV), a domestic intelligence agency that has no clear counterpart in other European countries.

The agency’s role is to police anti-constitutional extremism. The BfV, however, has often been unable or unwilling to fulfill this vital task. From 2012 to 2018, when the president of the agency was Hans-Georg Maaßen, the AfD – founded in 2013 – grew more powerful and more radical. Maaßen recently founded a right-wing party called “Werteunion” (Values Union) that is willing to reach agreements with the AfD and embraces part of its agenda.

In 2021, the BfV determined that the AfD merited the category of “suspected case of far-right extremism.” The far-right party appealed against the decision and the case has dragged on until now. The hearing in Münster is the second and last appeal. The AfD is likely to lose the appeal, but that would not imply its illegalization. A win for the BfV would bring further rights to investigate and surveil the activities of the party.

Both Trump and the AfD have been following the same legal strategy when forced to appear before the courts: delay, delay, and, if possible, delay even further. CNN reporter Stephen Collinson notes that Trump “appears to want to also forestall jury verdicts until after the general election – likely because polls have suggested some voters would be less keen to vote for him if he is a convicted felon.”

Meanwhile, the AfD wants to prevent for as long as possible a final decision on whether the BfV was right in qualifying the AfD as a “suspected case of far-right extremism.” This could negatively affect its electoral performance. There are elections to the European Parliament in June and regional elections in the three Eastern states of Saxony, Thuringia, and Brandenburg in September. In the European elections, the AfD is polling second with around 20% of the vote, whereas in the three Eastern states, the radical right is polling first with over 30% of the vote.

After the September elections in three of the five eastern states, broad coalitions, or at least tacit alliances from the left to the center-right will be needed to avoid that the far-right reaches its highest level of power in Germany since the end of the Second World War. In this sense, it is very worrying that the leader of the center-right CDU, Friederich Merz, continues to equate the left-wing party “Die Linke” with the AfD, announcing it will reach agreements with neither of these forces. Unless the pre-election polls are wrong by a huge margin, the CDU will soon be forced to pick a side.

By delaying the legal process in Münster, the AfD does not only seek to preserve the pretense that it is just as legitimate as any other German party – if not more, according to their discourse. The far-right party also seeks to prevent the BfV from taking the next step and qualify the whole AfD as “proven right-wing extremist”. The regional AfD groups in the eastern states of Saxony, Thuringia, and Saxony-Anhalt are already classified in this category.

DW News Video: “Why is Germany’s far-right AfD party so successful? | DW News”

The AfD has close ties with openly neo-Nazi groups and some of its leaders, especially in eastern Germany, have adopted a language very often reminiscent of Adolf Hitler and his Nazi party. Björn Höcke, the regional leader of the AfD in Thuringia and powerbroker within the national leadership of the party, has used multiple times the expression “Everything for Germany”, the motto of the SA, a paramilitary Nazi group that was key in Hitler’s power takeover in 1933.

Höcke has said that Africans have a biological reproduction strategy different from Europeans or, about Adolf Hitler, that “there is no black and white in history.” The AfD often employs terms such as “Volkstod” (death of the German nation), as well as “Stimmvieh” (voting cattle) for voters of opposing parties.

The AfD has often fantasized about the possibilities of “remigration”, a common term among far-right European groups. The concept refers to the deportation of people with a migration background and has been popularized by Martin Sellner, an Austrian neo-Nazi. The Austrian ideologist is banned from entering the US because he accepted money from – and probably met – Brenton Tarrant, a white supremacist terrorist. In 2019, Tarrant killed 51 people and injured 40 more in his attack against two mosques in Christchurch, New Zealand. On March 19 it became known that Sellner had been banned from entering Germany.

The concept of “remigration” is not a new one, and Höcke and other members of the most radical current within the AfD have been toying with the idea for years. However, many Germans became aware of how specific the concept of “remigration” has become in recent times when it was revealed that Sellner had presented his racist theses in a secret meeting in Potsdam organized by two businessmen. The meeting was attended by high-ranking AfD cadres – among them Ulrich Siegmund, the AfD leader in Sachsen-Anhalt – and some low-ranking members of the center-right CDU, who were later forced to resign. According to research by the independent investigative platform Correctiv, Sellner proposed that a far-right government in Germany should plan the deportation of asylum seekers, non-Germans with residency rights, and “non-assimilated” German citizens.

The Correctiv revelations triggered a wave of massive demonstrations in Germany against the far-right. They also renewed the discussion on whether a process should be started to ban the AfD. A call for a party ban can be issued by the German government, the parliament, or the Bundesrat, an institution where the different German states are represented. The final decision would always be in the hands of the German Constitutional Court. The process could take years and there would be no guarantee of success. The openly neo-Nazi National Democratic Party of Germany (NPD) was deemed too politically irrelevant to be banned when the Constitutional Court decided on the matter in 2017.

There is no consensus between the different German parties on whether an attempt to ban the AfD is the path to follow. The differences of opinion are also found within the parties. Whereas a parliamentarian for the center-right CDU was one of the early proponents of banning the AfD, the leader of the party Frederich Merz is against this. The neoliberal FDP is generally against the ban. Meanwhile, the Social Democrats of Chancellor Olaf Scholz have not taken a clear position, as views diverge on the issue. Within the Greens, banning the AfD would probably find wider acceptance. Every case is different, but the governing coalition in the northwestern state of Bremen, where the Social Democrats lead a government with the Greens and the left-wing “Die Linke”, has asked for an AfD ban.

German society appears to be equally divided on the appropriateness of initiating a process to illegalize the AfD. According to a poll from February 2024, 51 percent of the population was against starting such a process and 37 percent was in favor. The percentages change significantly when citizens are asked whether the AfD should continue to receive public funding as the other parties do. 41 percent are in favor while 48 percent want public funds not to reach the AfD.

On February 23, I attended a counterdemonstration against Martin Sellner, the neo-Nazi who has been pushing for “remigration”, when he visited the city of Chemnitz, in the state of Saxony. The protest was organized by “Chemnitz Nazifrei”, a group that has been mobilizing against the far-right for fourteen years in a city that represents a radical right stronghold.

Before the march against Sellner, I discussed with two activists of the “Chemnitz Nazifrei” movement their views on whether a procedure should be started to ban the AfD. They told me this had been a major issue of discussion within their group in recent times. Although more members of the “Chemnitz Nazifrei” movement are in favor of an AfD ban than against it, there is no clear majority.

One of the strongest arguments in favor of a ban, the activists I interviewed remarked, is the significant consequences this would have for the AfD’s financial situation, which could be forced to reduce its activities. At the same time, they fear that AfD followers could become more violent if a ban was implemented. They did not discard that something similar to the assault on the Capitol in Washington could take place in Germany if the AfD was banned. The open question for the members of “Chemnitz Nazifrei”, as for many others, is: If you ban the AfD, what about the situation afterward? A poll from February 2024 shows that only 43 percent of those who plan to vote for the AfD would be willing to consider voting for another party in the coming years.

It is certainly urgent to discuss whether Trump should be able to run again for president, or whether the AfD should be banned by the Constitutional Court. But the key issue is that broad sectors of both German and US society – a far stronger one in the latter case – have radicalized themselves to the extent that they are ready to use the instruments of democracy to undermine its foundations. This does not mean that every Trump or AfD voter is anti-democratic, and part of these voters can still be convinced to move to less extremist positions. But a considerable percentage of them, and maybe even the majority, have crossed the point of no return.

Democracy is not only destroyed through authoritarian power grabs or military coups but also through free and fair elections. While Germany has known this for a long time due to its historical trajectory, this does not necessarily imply that it is better prepared than other countries. The poor performance of the BfV in protecting the Constitution is proof of this.

While democratic systems offer many opportunities that right-wing radicals can exploit, they are not defenseless and have mechanisms to combat radicalism. If all democratic forces in Germany take the right-wing threat seriously – and here the center-right CDU needs to play a responsible role – and focus on what unites them, the AfD can still be kept away from the main centers of power in the country. It might be too late for the US, where Biden has recovered some ground in the polls in recent months but lags behind Trump in the states that will probably decide the November election. Germany, meanwhile, still has a strong anti-AfD majority but should not be too complacent.