After Richard Nixon resigned the Presidency in 1974, his successor Gerald Ford pardoned him to unite the country and end “the nation’s long national nightmare.”
Just a few weeks ago, the question seemed almost preposterous: What should happen to the federal prosecutions of Donald Trump if he is defeated in November? Today, it might be premature to imagine a President Kamala Harris grappling with whether to allow the cases against Trump to go forward or whether, before or after any convictions, to grant him a pardon. But this is a discussion worth launching now, in part because, as the prospect of a Harris victory comes into focus, there could be a “long national nightmare” impulse to put all things Trump in the rearview mirror. Under more ordinary circumstances, in more ordinary times, my sympathies would tend toward such calls for national reconciliation, the sentiments that animated Gerald Ford, 50 years ago next month, to pardon Richard M. Nixon.
In pardoning Nixon, Ford invoked the continued suffering of Nixon and his family, along with Nixon’s years of public service, but said his decision was driven by the need for national healing.
In retrospect, that decision looks wise and selfless. But it’s not the right template for thinking about Trump. Harris should allow special counsel Jack Smith to proceed with his prosecutions against the former president, or what’s left of them after the Supreme Court’s ruling on presidential immunity. If Trump is convicted and the conviction is upheld, Harris should not use her power to pardon Trump or commute his sentence.
Why? What’s the difference between Ford and Nixon then and Harris and Trump in a not-so-theoretical future?
First is the matter of consequences for bad acts, something that Trump has magically managed to avoid for most of his 78 years. Short-circuiting his prosecutions or upending his convictions would be the maddening capstone to a life of evading responsibility for wrongdoing.
A sitting president can’t be prosecuted, under long-standing Justice Department policy, so the findings by special counsel Robert S. Mueller III that Trump might have committed 10 acts of obstruction of justice went nowhere. The House of Representatives voted twice to impeach Trump, but the Senate failed to convict — the second time largely because Republican senators (and Trump’s own lawyers) pointed to the prospect of criminal prosecution for efforts to interfere with the election results. Then the Supreme Court carved out a broad sphere of immunity for Trump, jeopardizing at least part of Smith’s prosecution.
When it comes to Trump, accountability is a can endlessly kicked down the road. That’s not in the interest of justice — and it sets a bad precedent for future presidents. We can hope that it doesn’t take the threat of criminal consequences to dissuade presidents from wrongdoing, but rules and laws without consequences are meaningless. And the charges against Trump — that he plotted to overturn election results and obstructed justice to improperly retain classified documents — involve serious misconduct that calls out for enforcement.
Second, Trump is no Nixon, and I don’t mean this in a good way. Nixon’s wrongdoing was egregious, and criminal. But he did not pose a threat to democracy on the same level as Trump, with his incessant claims of a system rigged against him, of elections stolen and politically motivated prosecutions. Nixon left office under political pressure, but, still, he left office.
Nixon cannot accurately be called repentant, but in accepting the pardon he acknowledged “my own mistakes and misjudgments,” adding, “No words can describe the depths of my regret and pain at the anguish my mistakes over Watergate have caused the nation and the presidency — a nation I so deeply love and an institution I so greatly respect.” It is impossible to imagine anything approaching this degree of contrition from Trump. Those who accept no responsibility deserve no mercy. Those who continually incite discord should not receive a pass in the name of calming the turmoil.
Third, about that turmoil: Times have changed since Ford pardoned Nixon. The country has grown angrier and more divided. Ford openly worried about this in his day, warning that if he allowed a criminal case to proceed, “ugly passions would again be aroused. And our people would again be polarized in their opinions. And the credibility of our free institutions of government would again be challenged at home and abroad.”
Back then, for all the fury generated by the pardon, it was a reasonable judgment that it would calm the waters overall. Today, I wonder whether that would happen. If Harris were to order the prosecutions dropped or grant a pardon, would that have the same salutary effect as Ford envisioned in 1974? Polarization has edged into antipathy, not mere disagreement but vehement disdain for the other side. Political tribalism reigns; it takes precedence over the national interest. It is hard to imagine an act by Harris toward Trump that would magically alter this ugly reality.
So, my advice for former prosecutor and possible president Harris is to let Smith do his job and the criminal justice system work its will. She can decide down the road about a pardon, but she should be wary of taking the lessons of a half-century ago as a road map for what is best for the nation today.
To anyone who wonders if there is a difference between the two parties, here’s a big one: gun control. A Trump-appointed federal judge in Kansas struck down a ban on machine guns. He was following the advice of Justice Thomas, who made the wacky argument that if something was okay when the Constitution was written, then it’s okay now. The Founding Fathers did not ban machine guns: why should we?
Up next in the arms of school shooters: fully automatic machine guns. Trump appointee U.S. District Judge John Broomes (Kansas) ruled that the ban on owning fully-automatic machine guns that’s been part of American law since the 1930s is unconstitutional. Citing Clarence Thomas’ argument that if something wasn’t illegal at the time the Constitution was written it shouldn’t be illegal now, Broomes has set up a new case that’ll almost certainly end up before the six rightwing cranks on the US Supreme Court.
Judge J. Michael Luttig was appointed to the federal bench by President George H.W. Bush. He served from 1991-2006 on the Court of Appeals of the Fourth Circuit.
He issued the following statement to explain his decision:
Almost four years ago now, on January 6, 2021, a stake was driven through the heart of America’s Democracy, and on that day American Democracy was left teetering on a knife’s edge. On that day, the prescribed day for choosing the American president, there was not a peaceful transfer of power in the United States of America — for the first time in the almost 250 years since the Founding of the Nation. As a consequence of the former president’s continued denial of that appalling day, and his defiance of America’s Democracy to this day almost four years later, millions of Americans still believe that the 2020 presidential election was “stolen” from the former president, despite the fact that he lost that election fair and square in what has been proven over and over to have been the freest, fairest, and most accurate election in American history. Because of the former president’s continued, knowingly false claims that he won the 2020 election, millions of Americans no longer have faith and confidence in our national elections, and many never will again. Because of the former president’s knowingly false claims, many Americans — especially young Americans, tragically — have even begun to question whether constitutional democracy is the best form of self-government for America. The 2020 presidential election of course was not “stolen” from the former president and he knows that. It was the former president who attempted to steal the 2020 presidential election from the American People, not they from him. To attempt to steal an election in the United States of America is to attempt to steal America’s Democracy. For the former president to continue to persist in the knowingly false claim that the 2020 presidential election was stolen from him is a profound affront to American Democracy and to the Constitution of the United States — an affront without any precedent in all of American history.
In his utterly inexplicable obsession to this very day to deny, attempt to justify, even to glorify January 6, and to bludgeon Americans into believing that the 2020 presidential election was stolen from him when he knows it was not, the former president has corrupted America’s Democracy. Yet, to this day — to this day still — not only does the former president, and now the Republican Party of which he is again the standard bearer, continue to falsely claim that the former president won the 2020 election. He and his Party defiantly refuse even to pledge that they will honor and respect the vote and the will of the American People in the upcoming presidential election. In this defiant refusal, the Republican candidate for the presidency and the Republican Party have literally taken America political hostage, threatening the Nation with the specter of another January 6, 2021 on January 6, 2025, if the former president again loses his campaign for the presidency by a vote of the American People. Until January 6, 2021, there was a peaceful transfer of power from one President of the United States to his successor for almost 250 years. The peaceful transfer of power from one President of the United States to the next and the commitment of presidential candidates and their respective political parties to the peaceful transfer of power in the next election are fundamental tenets of our constitutional Republic. Adherence to these tenets is essential to American Democracy, American governance and government, and to the Rule of Law in the United States of America. Without the peaceful transfer of power, America would have no democracy. The politicians tell us that America’s Democracy and the Rule of Law are too “abstract” to “resonate” with American voters. If that was ever true in the past, which I do not accept, it is emphatically not true today. For reasons we all know too well, there could not possibly be any more concrete and consequential issues for the Nation and the American voter today than America’s Democracy and Rule of Law. America’s Democracy, and along with it the Rule of Law, were almost stolen from us on January 6, 2021, by the former President of the United States, who is, today, asking us to return him to the Highest Office of trust in the land.
America’s Democracy and Rule of Law are the defining features of our Nation. It is America’s Democracy, Constitution, and Rule of Law that have made America the envy of the world and the beacon of democracy and freedom for the world for almost 250 years. This presidential election is a test of Americans’ commitment to America’s Democracy, the Constitution, and the Rule of Law. It is so because the former president and the Republican Party have shamefully made it so. The often lofty, at times even noble, policy differences that have been the hallmark of American Politics and partisan debate for almost a quarter of a millennium pale in comparison to the foundational national policy issues of America’s Democracy, Constitution, and Rule of Law. American Democracy, the Constitution, and the Rule of Law are the stakes — the only real stakes — in the upcoming election.. Having made them so, these foundational issues of our times cannot now be wished away by the former president and his Republican Party, as they would have it. And they must not be wished away by the American People. The fact remains to this day that even the loftiest and noblest of policies and policy differences will be comparatively inconsequential unless and until we Americans bring to an end the war on America’s Democracy that was instigated by the former president and his allies on January 6, 2021. For their part, the former president and the Republican Party have determined to prosecute their war against America’s Democracy to its catastrophic end. As a consequence, for our part, “We the People” must bring this unholy war to an end – now. The Founders of our Nation and the Framers of our Constitution feared most of all this very moment in American history, when the American People would be tempted by the seductive demagoguery of a modern-day populist demagogue. In a letter to George Washington in 1792, over 230 years ago, Alexander Hamilton warned of this day and this demagogue, who would “mount the hobby horse of popularity” and whose “objects” “may justly be suspected to throw things into confusion that he may ‘ride the storm and direct the whirlwind.’”
Thomas Jefferson agreed with Alexander Hamilton about very little, except about the existential danger to the Republic of a populist demagogue. “If once elected, and at a second or third election outvoted by one or two votes, he will pretend false votes, foul play, hold possession of the reins of government, be supported by the States voting for him,” Jefferson presciently wrote to James Madison in 1787. The time for America’s choosing has come. It is time for all Americans to stand and affirm whether they believe in American Democracy, the Constitution, and the Rule of Law, and want for America the same — or whether they do not. The former president and the Republican Party have cynically framed this choice as a Hobson’s choice and they have cynically forced their supposed Hobson’s choice upon the Nation. But they have chosen as their standard bearer the one man who is singularly unfit to embody and represent not only to the Nation, but to the world, America’s sacred Democracy, Constitution, and Rule of Law. In a word, for America and Americans, this is no Hobson’s choice at all. America’s two political parties are the political guardians of American Democracy. Regrettably, in the presidential election of 2024 there is only one political party and one candidate for the presidency that can claim the mantle of defender and protector of America’s Democracy, the Constitution, and the Rule of Law. As a result, I will unhesitatingly vote for the Democratic Party’s candidate for the Presidency of the United States, Vice President of the United States, Kamala Harris. In voting for Vice President Harris, I assume that her public policy views are vastly different from my own, but I am indifferent in this election as to her policy views on any issues other than America’s Democracy, the Constitution, and the Rule of Law, as I believe all Americans should be.
In the 2024 election for President of the United States, there are no more important issues for America. It is our Democracy, our Constitution, and our Rule of Law that bind us together as Americans. We Americans must never allow ourselves to be put asunder from this that binds us by the siren calls of the politicians and the political sophists, the mercenaries and the opportunists, who entreat us that the only thing that matters in this presidential election is the candidates’ different positions on the sundry policies of the day. All, as if nothing had come before. We Americans know all too well what has come before. We understand what the political class does not want us to understand. That in the presidential election of 2024, the candidates’ policy differences are the least that matters to the United States of America.
This is quite a remarkable story. Samuel Freedman wrote in the New York Times in 2008 about a social studies teacher in Alliance, Nebraska. He wrote about a world geography class in 1993 where students learned about genocide. Their teacher was Tim Walz.
After studying the circumstances that set the climate for horrific mass murder, Mr. Walz gave a final exam in which the students identified a country where genocide might happen. They picked Rwanda. Mr. Walz was a good teacher.
The story in 2008 begins:
In 1993, when Travis Hofmann was a freshman of 15, he had traveled little beyond the sand hills that surrounded his hometown, Alliance, Neb. He was the son of a railroad engineer, a trumpeter in the high school band, with a part-time job changing the marquee and running the projector at the local movie theater.
In Travis’s class in global geography at Alliance High School, however, the teacher introduced the outside world with the word and concept of genocide. The teacher, Tim Walz, was determined that even in this isolated place, perhaps especially in this isolated place, this county seat of 9,000 that was hours away from any city in any direction, the students should learn how and why a society can descend into mass murder.
Mr. Walz had already taught for a year in China, and he brought the world into his classroom in the form of African thumb pianos and Tibetan singing bowls. For the global geography class, he devised something far more ambitious than what the curriculum easily could have been the identification and memorization of capitals, mountain ranges and major rivers. It was more ambitious, too, than a unit solely on the Holocaust of the sort many states have required.
“The Holocaust is taught too often purely as a historical event, an anomaly, a moment in time,” Mr. Walz said in a recent interview, recalling his approach. “Students understood what had happened and that it was terrible and that the people who did this were monsters.
“The problem is,” he continued, “that relieves us of responsibility. Obviously, the mastermind was sociopathic, but on the scale for it to happen, there had to be a lot of people in the country who chose to go down that path. You have to make the intellectual leap to figure out the reasons why.”
So Mr. Walz took his students Brandon Bell, the wrestler; Beth Taylor, the cheerleader; Lanae Merwin, the quiet girl always reading some book about Queen Elizabeth; and all the other children of mechanics, secretaries and a town dentist and assigned them to study the conditions associated with mass murder. What factors, he asked them to determine, had been present when Germans slaughtered Jews, Turks murdered Armenians, the Khmer Rouge ravaged their Cambodian countrymen?
“It was different and unusual, certainly not a project you’d be expecting,” Mr. Hofmann, now 31, of Phoenix, remembered recently of the class. “The biggest part was just the freedom to explore things. No matter how abnormal or far-fetched an idea might sound, you can form an opinion. Instead of just going in and having a teacher say, ‘Here’s information, learn it, know it, you’ll be tested on it,’ it was, ‘Here’s an idea, run with it.’ ”
For nine weeks through the winter and early spring that school year, through the howling blizzards and the planting of the first alfalfa on the plains, the class pored over data about economics, natural resources and ethnic composition. They read about civil war, colonialism and totalitarian ideology. They worked with reference books and scholarly reports, long before conducting research took place instantly online.
Most, like Mr. Hofmann, had spent their entire lives in and near Alliance. A few had traveled to Washington, D.C., with the school marching band. A few had driven four hours to Denver to buy the new Nirvana CD. Mostly, though, the outside world was a place they built, under Mr. Walz’s tutelage, in their own brains.
When the students finished with the past, Mr. Walz gave a final exam of sorts. He listed about a dozen current nations Yugoslavia, Congo, some former Soviet republics among them and asked the class as a whole to decide which was at the greatest risk of sliding into genocide.
Their answer was: Rwanda. The evidence was the ethnic divide between Hutus and Tutsis, the favoritism toward Tutsis shown by the Belgian colonial regime, and the previous outbreaks of tribal violence. Mr. Walz awarded high marks.
Then summer arrived and school let out. The students did what teenagers did in Alliance over the summer. They water-skied at the reservoir, swam in the Bridgeport sand pits and mostly “cruised the Butte,” endlessly driving up and down Box Butte Avenue.
THE next April, in 1994, Mr. Walz heard news reports of a plane carrying the Rwandan president, Juvenal Habyarimana, being shot down. He told himself at the time, “This is not going to end up good.”
It did not. Over the next three months, militant Hutus killed 800,000 Tutsis and moderate Hutus. The reports reached even The Alliance Times-Herald, the local daily newspaper. Mr. Walz’s students, now juniors, saw their prophecy made into flesh and blood.
“It was terribly chilling,” Lanae Merwin, now 31, of Hastings, Neb., recalled in a recent interview. “But, to us, it wasn’t totally surprising. We’d discussed it in class and it was happening. Though you don’t want a prediction like that to come true.”
Mr. Hofmann remembered having a similar reaction. “It was just strange to know that something was discussed not too long before that could actually happen,” he said. “Just a surreal feeling. To everyone else, it’s 8,000 miles away no one cares. How can you grasp it? But to us, it was, we talked about it. For us, it was something that reached us directly.”
Years have passed. Mr. Walz left Alliance and moved to his wife’s home state, Minnesota; he is the only active teacher now serving in the United States Congress. His former geography students have moved as adults to Arizona, Nevada, Colorado and New York. Ms. Taylor lived in Poland for a while.
Now, in 2008, April has come again. It is, among other things, the month for genocide remembrance the month when Rwanda was convulsed, when the Khmer Rouge conquered Cambodia, when Armenians commemorate what they call the Great Catastrophe, when Yom HaShoah, Holocaust memorial day, almost always falls. (Though this year, because of the Jewish lunar calendar, it will be observed on May 1.) The lessons of a classroom in Alliance 15 years ago still matter.
“You have to understand what caused genocide to happen,” Mr. Walz said, with those grim anniversaries in mind. “Or it will happen again.”
Every once in a while, a story appears that is so riveting that you can’t put it down. Such a story is Clare Malone’s analysis of what makes Bobby Kennedy Jr. tick. It appears in The New Yorker, where Malone is a staff writer. Malone has interviewed him and numerous people who knew him at different points in his life. What emerges is a portrait of a man who is charismatic and charming but deeply troubled.
He is a man of many addictions. He was addicted to drugs for many years; she says he first tried heroin when he was 15, and he was deeply into drugs when he was a student at Harvard.
He is addicted to sex. Women flocked to him, and he bedded them as often as he could. He married three times, and she writes that he was a serial philanderer. He left his first wife for his second wife, who was six months pregnant when they married. He left her for his third wife and sued for custody of their children. The second wife committed suicide.
He is addicted, as she shows, to attention. A lawyer, he became involved in environmental activism, where he carved out a new identity and achieved great success litigating against major corporations. Then he became engaged in anti-vaccine activism, after a mother from Minnesota convinced him in 2003 that her son’s autism was caused by vaccines he received when he was only four months old.
Kennedy, she shows, was always susceptible to conspiracy theories. He believes the CIA was involved in the murders of his uncle and father. He easily saw a conspiracy to hide the evidence behind vaccines and autism. He became a leading opponent of vaccines.
Malone tells the story of Kennedy and the body of a black bear cub, which he found on the road in the Adirondacks in 2014. He put the dead animal in the trunk of his car and staged a photo of himself with his hand in the mouth of the dead animal.
That year, Kennedy and his wife moved to Los Angeles, where he became active with an anti-vaccine group called World Mercury Project, founded by a vaccine skeptic, Eric Gladen. The group was later named Children’s Health Defense.
At an event in Sacramento to promote a film by Gladen, “Trace Amounts,” Kennedy told a crowd that, when children receive vaccines, “that night they have a fever of a hundred and three, they go to sleep, and three months later their brain is gone. This is a holocaust, what this is doing to our country.”
Following a measles outbreak in 2019, his older brother and sister wrote an article denouncing Robert’s anti-vaccine advocacy. He was undeterred. Children’s Health Defense was one of the nation’s leading purveyors of vaccine skepticism.
With the arrival of covid, Kennedy’s reach exploded. He churned out books: “The Real Anthony Fauci,” “Vax-UnVax: Let the Science Speak,” and “A Letter to Liberals: Censorship and Covid.” In the summer of 2021, as covid vaccines were rolling out, Children’s Health Defense promoted its film “Medical Racism: The New Apartheid,” which was seemingly aimed at Black Americans. During the early weeks of Kennedy’s Presidential campaign, the New York Post published a video in which Kennedy said that covid was “targeted to attack Caucasians and Black people” and that “the people who are most immune are Ashkenazi Jews and Chinese.” Researchers in China, Russia, and the U.S., he went on, are developing “ethnic bioweapons” to “target people by race.” (Kennedy said that his remarks were taken out of context.)
After Kennedy decided to run for president as a spoiler, Kennedy’s former colleagues in the environmental movement were appalled. They were afraid that he would help Trump win, the candidate whose record on the environment was a disaster. He had turned from anti-corporate to anti-government.
After the assassination attempt on Trump, Kennedy praised Trump for his courage. Trump called Kennedy and let him know that there would be a place for him in the next Trump administration. Kennedy appeared at the Republican National Convention.
In a recent text exchange, Kennedy told one person that Trump was “a terrible human being. The worse president ever and barely human. He is probably a sociopath.” But, Kennedy went on, Biden was “more dangerous to the Republic and the planet.”
Kennedy’s press secretary told Malone that Trump wanted Kennedy to drop out of the race because he was hurting Trump more than Biden. Kennedy was tempted by the role as Secretary of the Department of Health and Human Services.
The article is engrossing. At the end, I felt that Kennedy was a man of intellect and passion who squandered his talents. Too much money, too much privilege, too much tragedy, too consumed by his addictions. And now, championing a cause that may lead to the deaths of countless children.
Hello again. I had been hoping to continue my peaceful existence, far from the news cycle. But I have heard my name invoked and I simply must set the record straight. I would not rest well knowing that people thought I was implicated in the episode that recently came to light involving Robert F. Kennedy Jr.’s disposal of a dead bear cub. That was all my host. I, the brain worm that died inside his skull in 2010, had no part in it.
“Isn’t picking up a dead bear cub and bringing it along in your car, ‘Weekend at Bearnie’s’-style, for an afternoon of outdoor activity and dinner at Peter Luger Steak House, then ditching it in Central Park along with a bicycle in an attempt to implicate cyclists in its demise the kind of suggestion that a brain worm would make?” First of all, rude. Second of all, no. What self-respecting parasite would say, “Yes, let us spend more time with meat that has been improperly handled? I want maximum competition for my spot within my host’s brain!” There is no logic in it.
Worse yet, there is an image circulating of my erstwhile host posing with the dead bear cub that he drove around for that memorable afternoon in 2014; he suggests that perhaps taking this photo was when he picked up his brain worm. This is slander, and my legal team will be in contact with his. I died in 2010 and was not involved in the bear incident.
Candidly, no part of the story makes any sense to me. I have watched the video in which my former host attempts to explain the situation to Roseanne Barr, whose presence is, improbably, the most normal part of the video. My host’s explanation, as far as I can understand it, is that he was on his way to do falconry (no, this is still not the strangest part of the story! If I lose you now you are lost forever), saw an unknown driver hit a bear and then he put the dead cub in his van because he was going to eat the meat.
I had thought that we parted on bad terms and he would not want a repeat brain-worm visitor, but the decision to eat roadkill bear meat, especially roadkill bear meat that had sat in his car all day while he did falconry, leads me to wonder if perhaps he missed me, or if I had left an emptiness in him that he wished to fill with another guest. But I can only speculate.
He had such a good day of falconry that he forgot all about the bear carcass in his van. (I am just a simple brain worm. Is this a normal sentence that human beings say all the time?) And then he had to go to dinner at a famous steakhouse and then realized he had to go to the airport and couldn’t just leave the bear carcass in his car at the airport. The part about not leaving a bear carcass in your car at an airport makes sense to me, once you have reached the point where you have a bear carcass in your car. It is that first part, though, that continues to baffle me.
And then his friends, who had been drinking (when you are a human being and your drunk friends all say, “This sounds like a good idea!” is this how you know that you have hold of a good idea?) signed off on his plan for disposing of the bear, which was as follows: There had been a lot of bike accidents, and he had an old bike in his car that someone had asked him to get rid of (okay!), so why not drive the bear to Central Park and stage the bike to make it appear that the bear had perished in one such accident? Just as a treat for the people who would find the bear. (Is this what you would consider a treat? I don’t know! I am just a brain worm, asking questions. I do not have a brain, except a little bit of it which I enjoyed consuming very much.)
Anyway, I had no part in any of this. And for the record, the talks about taking a Cabinet position in a second Trump administration weren’t my idea, either.
A Sunday special editorial by my good friend Greg Palast for The Hartmann Report. Catch Palast this week on Thom.TV
Do you know about Donald J. Trump’s Executive Order 13950? If you don’t, be afraid. Be very afraid.
Just weeks before he was fired by America’s voters in 2020, President Trump issued this piece of nastiness which was quickly rescinded by just-inaugurated President Biden.
The Executive Order is a “DCL,” what the right-wing brilliantly calls a, “Divisive Concepts Law.” These DCL’s terrorize teachers with the threat of losing their jobs if they dare teach the truth of America’s racial history: That white people enslaved Africans, that the Klan enforced racial vote suppression with the hanging rope. And God forbid, they teach that women were banned from the vote until the 20th Century. The Executive Order bans teaching any historical facts if,
“….any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex….”
As a practical matter, it means teaching the truth of America’s racial stain will get you fired. In 2021, Tennessee high school teacher Matt Hawn lost his job because a student accused him of teaching—cover your children’s ears—“Critical Race Theory.” Hawn said he’d never heard of Critical Race Theory when he was canned.
(Critical Race Theory, taught in law schools, says many of America’s laws and their enforcement, contain a racial bias. Well, D’oh!].
On Thursday, Vice-President Harris told the American Federation of Teachers convention in Houston, epicenter of the anti-CRT hysteria,
“While you teach students about our nation’s past, these extremists attack the freedom to learn and acknowledge our nation’s true and full history; including book bans! Book bans — in this year 2024! Just think about it: we want to ban assault weapons and they want to ban books.”
It was a century ago, that Tennessee was the laughingstock of the nation for prosecuting a schoolteacher for telling his class about human evolution, a story recounted in the film, Inherit the Wind. Now, a hundred years later, Trumpsters are again passing wind over Tennessee.
And he’s baaaaack! Trump has put his fixation with censoring “divisive concepts” into the GOP platform. Details are provided in the Heritage Foundation’s Project 2025 master plan for the master race.
Ill wind out of Georgia
This ill wind originated in Georgia when Gov. Brian Kemp signed HB1084, threatening the jobs of teachers fot teaching ‘divisive concepts’ that could make a white child feel “discomfort.”
Who would feel “discomfort” about the uncensored history of Georgia? Well, maybe it’s Gov. Kemp himself. Because it was the Kemp family, then known as the Habershams, that first brought Africans in chains to Georgia.
Maybe Kemp and family should feel a bit of discomfort. I spoke with Janie Banse, who told me she is she is heartsick that her cousin, Gov. Kemp, won’t admit that their family’s wealth originated in the African slave trade. Kemp’s ancestors held the largest auction of human beings in American history, still remembered by Black Georgians today as “Weeping Time,” when 436 men, women and their children were separated and sold.
Georgia’s HB 1084, passed in 2022,
Prohibit[s] the use of curricula that addresses the topics of slavery, racial oppression, racial segregation, or racial discrimination, including topics relating to the enactment and enforcement of laws resulting in racial oppression, segregation, and discrimination in a professionally and academically appropriate manner and without espousing personal political beliefs;
And what if a teacher expresses a personal distaste for slavery? Since Georgia was among the first to pass a “DCL,” and at least 16 states have followed.
In Florida, Gov. Ron DeSantis, dubbed his DCL the “Stop WOKE Act.”
He banned the College Board’s AP African American Studies course and supported new Black history standards that include the requirement to teach, “how slaves developed skills which, in some instances, could be applied for their personal benefit.”
I can’t make this up.
Since 2021, at least 27 states have imposed or proposed bans or restrictions on teaching topics related to race and gender. Mississippi, Alabama, Arizona and Oklahoma all passed these Divisive Concepts laws. What do these states have in common? According to rankings by US News and World Report, they are all in the nation’s bottom third in educational achievement. Apparently, they won’t teach uncensored history—but then, it’s not clear that they teach much history at all.
Killing Killers
Trump’s DLC brigade is not just putting a blindfold over students regarding slavery and Jim Crow. Oklahoma’s Divisive Concepts Law has effectively silenced the true story of the state that was once known officially as, “Indian Territory.”
Jim Gray, former Principal Chief of the Osage Nation, told me that teachers throughout the state have been yanking copies of David Grann’s book Killers of the Flower Moon off their classroom shelves. Killers, on which the Martin Scorsese/Leonardo DiCaprio movie is based, tells the true story about how, in the 1920s, over 100 Oklahoma Osage were murdered for their oil rights.
The insidious brilliance of the Oklahoma law is that it has a fuzzy general prohibition on “divisive” concepts—with teachers facing loss of their teaching credentials and the entire school district losing funding. Because teachers have to guess which books or films will get them fired, the result is mass self-censorship, with Killersculled from classrooms across the state.
A RAND corporation study found that a breathtaking two out of three K-12 teachers, “have decided on their own to limit instruction about political and social issues in the classroom.” Can you blame them?
Any student or parent can put a legal gun to a school principal’s head. But when the law says, “students,” as a practical matter, they don’t mean young kids on the Reservation. Every year, on April 22, Oklahoma celebrates “Sooner Rush Day”, the day in 1889, when any white man could simply stand on a plot of land and seize the surrounding 160 acres of what was, by treaty, Indian Territory. Indigenous kids have to re-enact the theft of their property whether they feel discomfort or not.
But some states are not shy about creating Black Lists of books to ban. Assigning anti-racist classics Huckleberry Finn or To Kill a Mockingbird, could kill a teacher’s career. PEN America counted 3,132 books banned in nine states in the 2022-23 school year.
Evicted from the Historical Society
Cui Bono? Who benefits from historical amnesia? Kemp alone was not the only white boy to make his fortune from a slaver’s whip. Historic amnesia is a profit center covering many historic misdeeds from Jim Crow to union busting to corporate corruption.
I found this out when I was physically ejected from the Georgia Historical Society in Savannah. I was having a polite interview with the Society’s in-house historian, Dr. Stan Deaton, who was explaining that the Klan took over control of the South when, in 1876, Republicans lost both the popular vote and the Electoral vote—yet a pact between the Klan-backed Southern Democrats and northern Republicans used a sly maneuver to overturn the vote and install the GOP candidate as President. It came down to one official, Dr. Deaton noted, then added, “We saw Mike Pence in that situation recently.”
The second the historian uttered the words, “Mike Pence,” the door flew open and the Society’s PR man halted the interview and expelled me from the building, saying, “We have to protect the new corporate donors on our board.”
I was curious. Who were these “donors” needing protection from history? I found their gala dinner on YouTube with their tuxedoed corporate money men: Georgia Pacific (owned by Koch Industries), Home Depot (owned by right-wing union buster Ken Langone), and Southern Company, whom I investigated some years ago for racketeering and the inexplicable death of whistleblowers. And the Chairman of the Historical Society? Gov. Brian Kemp.
The Occupation
Just below Savannah, at the Kemp family’s old plantation, I spoke with caretaker and Councilman Griffin Lotson whose own great-grandmother was sold at Weeping Time by Kemp’s progenitors.
Lotson emphasizes the connection between this legally enforced historical amnesia and the fight for voting rights. He says, “Suppressing history is suppressing the vote.”
Back in Oklahoma, the current Principal Chief of the Osage, Geoffrey Standing Bear, explained that if Oklahoma were to admit that its “Sooner Rush” was simply theft from the indigenous owners of the land, then it would force open eyes to what he calls, the “military occupation [of Native land] that continues today.”
Napoleon famously said, “History is a set of lies agreed upon.” Trump’s DCL crusade sees history as a set of truths silenced
Jonathan V. Last, editor of The Bulwark, a site founded by Never Trump Republicans, explains how he sees the new situation, the withdrawal of Joe Biden and the ascension of Kamala Harris as the likely nominee:
The Democratic party is healthy. The Republican party is not.
Our greatest living president. (Jessica Rinaldi/The Boston Globe via Getty Images)
1. Seven Lessons
(1) The Democratic party is a healthy institution.
On the night of June 27, the various power centers within the Democratic party began a difficult conversation: Was Joe Biden still capable of running a vigorous campaign?
Over three weeks the party reached a diffuse—if not unanimous—consensus: He was not. This consensus was the product of all levels of the party: Elder statesmen such as Nancy Pelosi, elected Democrats analyzing their own future prospects, donors making decisions about spending, and the main body of public opinion among Democratic voters.
Once this consensus was reached, the various power centers began a dialogue with the party’s leader, President Biden. The party expressed its choice. Biden pushed back. The party took up the question again and, after due consideration, held firm.
Joe Biden then stepped aside for the good of the nation.
This is how healthy institutions are supposed to work…
2. The process which elevated Kamala Harris was sensible.
The Democratic party made another institutional decision in parallel with the Biden question: It vetted Kamala Harris.
This subroutine executed in the background, but it was active. Democratic voters began to consider her as the nominee and polling showed that they were comfortable with her. Party elders evaluated her fitness. Donors and elected Democrats took her measure. The fact that no anti-Harris groundswell—or even boomlet—emerged is proof that the party decided that Harris was an acceptable nominee.
After Biden blessed Harris on Sunday afternoon, the party coalesced around her in much the way it did Biden after the New Hampshire primary in 2020.
The Democratic party will enter the election more unified than it had been pre-debate.
3. Kamala Harris can run as an insurgent, but with the advantages of an incumbent.
The largest advantage of incumbency is that a candidate does not have to take base-pleasing positions during a primary campaign that can hurt him during a general election.
Because of the extraordinary nature of her ascendence, Harris possesses this advantage. She will carry nearly every advantage of incumbency and yet she can credibly position herself as this election’s change agent.
4. Trump is holding the age bomb.
The Trump campaign spent two years creating a political bomb concerning old age. They assumed that they could plant this bomb at the feet of Joe Biden.
Trump is now the one holding the age bomb. He is not only a full generation older than Harris—everything about him looks geriatric by comparison. From his gait to his bronzed-over pallor; from the way he rambles and gets lost in sentences to his inability to keep facts straight.
Every split screen now makes Trump look old and decrepit by comparison.
5. There was enormous pent-up demand among Democrats for a younger leader.
That’s more money than any Democrat has ever raised in a single day. It’s twice as much as Trump raised following his felony conviction. If this doesn’t snap your head back, it should.
Because it’s as good a proxy as you’ll find for excitement.
It will be several days until we have polling with a more detailed view of Harris’s support from Democratic voters, but it is already clear that she will perform much better than Biden has within her party.
Here’s my advice: You should be open to the idea that Harris could ride a wave of excitement and passion that absolutely no one was seeing until Biden stepped aside. I’m talking Obama ‘08-levels of energy.
It’s not a given. But it’s in the realm of the possible. Keep your eyes peeled for it.
6. The Republican party is a failed state.
At the debate, Donald Trump also demonstrated (again) that he is unfit for office. He rambled and lied incoherently. He is a convicted felon. A jury found him guilty of sexual assault. He has said he wants to be a “dictator” and that he wants to “terminate” parts of the Constitution. He selected as his running mate a man who advised disobeying orders from the Supreme Court and forcing a constitutional crisis.
Until last week there was nothing stopping the Republican party from forcing Trump off the ticket. The party elders and elected officials could have demanded that Trump step aside. Republican voters could have said that they had no confidence in his ability to govern. Donors could have closed their wallets.
But the plain fact is that not one single Republican called on Trump to step aside.
Not one.
Why? Because the various precincts of the Republican party understand that they hold no power—at all—over Trump. They could not ask him to withdraw from the race. Even broaching the subject would be grounds for excommunication from the party.
The Democratic party is a functioning institution, with checks and balances; constituencies and power structures. Like any institution, it is amorphous and its decision making is mostly organic.
The Republican party is an autocracy where the only thing that matters is the will of the leader. All power flows through him. All decisions are made by him. There are no competing power centers—only vassal states overseen by his noblemen.
7. Harris is an underdog.
One of the reasons the last three weeks have been so difficult is because Democrats were not choosing between a “good” outcome and a “bad” outcome.
Those sorts of choices are easy.
Instead, Democrats were tasked with deciding between least-bad options. Humans rebel against the idea of “least-bad.” When faced with choices, we want to believe that at least one of them is “good.”
When the first real Harris-vs.-Trump polling comes out next week we’ll see how big of a hole she’s in. But unlike Biden, Harris has the ability to spend the next three months on offense, all day, every day. If she can deliver the goods, she has a puncher’s chance.
2. In Praise of Biden
A slight push-back against those who believe Biden took too long to step aside:
It was three and a half weeks from the debate to Biden pulling out. That’s it.
Joe Biden is the president, but he’s also just a man. Coming to a decision like this one—an unprecedented decision—is hard. There’s a lot to weigh and there’s a tremendous responsibility to get it right.
My own view is that Biden made the call basically as quickly as possible. He couldn’t have done it the week of the NATO summit. Then Trump was shot in the ear. Then there was the Republican convention. To my mind, Biden’s timing on this was optimal, actually.
Nothing about Joe Biden’s presidency was inevitable. Not his candidacy. Not his victory over Trump. Not his withdrawal from reelection.
At nearly every turn, Biden did the right thing for America.
His legacy is assured. He will be remembered as one of the great modern presidents.
I said this last night and I’ll say it again. History had its eye on Joe Biden, and he met the moment. He did his part. Now it’s up to Kamala Harris and us to do ours.
John Thompson, historian and retired teacher, brings us up to date with the latest shenanigans of Oklahoma’s State Superintendent Ryan Walters. Recently, he mandated that the Bible be taught in the state’s classrooms. Now Walters has appointed a list of rightwing luminaries to rewrite the state’s social studies curriculum. Just when you thought it couldn’t get worse, Walters proves that it can.
John Thompson writes:
KOSU’s Beth Wallace reports that the Executive Review Committee assembled by Oklahoma State Superintendent Ryan Walters features prominent conservatives, including Dennis Prager of PragerU, David Barton of the Christian Nationalist organization, Wallbuilders, and the president of the Heritage Foundation, Kevin Roberts.” She then reminds readers that, “The Heritage Foundation is the think tank behind Project 2025, a movement that proposes to dismantle the U.S. Department of Education.”
More information was provided to NBC’s Tyler Kingkade and Marissa Parra during their interview with Walters about his plans for transforming school curriculums. They reported that “Oklahoma educators who refuse to teach students about the Bible could lose their teaching license.” Ryan Walters said that those teachers would “face the same consequences as one who refuses to teach about the Civil War. The punishment could include revocation of their teaching license.”
Moreover, Walters expressed confidence “that his order will survive legal challenges because of the Justices then-President Donald Trump appointed to the Supreme Court.” And if Trump is elected, “it will help us move the ball forward, even more so than this.”
Until recently, Dennis Prager was the best known rightwinger selected for Walters’ committee. The Hill’s Lexi Lonas explained that Prager’s so-called education group “focused on teaching conservative principles. The conservative platform has been made its way into multiple states, with videos such as ‘Was the Civil War About Slavery?’ and ‘The Inconvenient Truth About the Democratic Party.’”
National Public Radio’s Barbara Bradley Hagerty referred to another committee member, David Barton, in a very different way, as “the most important Evangelist You’ve Never Heard Of.” Hagerty explained that Barton collected 100,000 documents and, “He says they prove that the Founding Fathers were deeply religious men who built America on Christian ideas — something you never learn in school.” Barton argued that the Constitution isn’t a secular document because it “is laced with biblical quotations.”
However, NPR “looked up every citation Barton said was from the Bible, but not one of them checked out.” The Constitution had “no mention of God or religion except to prohibit a religious test for office.” Then Hagerty quoted, “John Fea, chairman of the history department at evangelical Messiah College,” who said, “Barton is peddling a distorted history that appeals to conservative believers.”
Hagerty also fact-checked Barton’s claim that President Thomas Jefferson “who owned nearly 200 slaves — was a civil rights visionary,” and he had plans that “would’ve ended slavery really early on,” and “they would have gone much more toward civil rights.” Barton said that Virginia law “prohibited Jefferson from freeing his slaves during his lifetime.” When that statement was shown to be false, Barton said that, “Jefferson could not afford to free his slaves.”
So, David Barton and Dennis Prager clearly aren’t qualified to recommend history curriculums, but the most dangerous member of the committee is Kevin Roberts, who is a driving force in the Christian Nationalist Project 2025, which is a detailed game plan for a Trump administration for dismantling the federal government’s administrative institutions. It seems obvious that his goal for the Oklahoma Executive Review Committee is to dismantle public education.
The Washington Post reports that Roberts recently said of Project 2025, “We are in the process of the second American Revolution, which will remain bloodless if the left allows it to be.”
Roberts told the New York Times’ Lulu Garcia-Navarro that “he views Heritage’s role today as ‘institutionalizing Trumpism.’” Garcia-Navarro said that Project 2025 was:
A transition blueprint that outlines a plan to consolidate power in the executive branch, dismantle federal agencies and recruit and vet government employees to free the next Republican president from a system that Roberts views as stacked against conservative power.
Roberts has praised Hungary’s authoritarian, Christian Nationalist Viktor Orban, adding that “Modern Hungary is not just a model for conservative statecraft but the model.” He’s also said that he wants to “destroy the administrative state,” and defeat “the secret Communist movement in America.”
And since he is serving on Walters’ committee for rewriting history, it is noteworthy that Roberts said that Joe McCarthy “largely got things right.”
When asked if he believes that President Biden won the 2020 election, Roberts replied, “No.”
And that brings us to the reason why Rex Huppke writes in the Oklahoman:
Project 2025 is a governing blueprint designed by a collection of former Trump administration officials who seem to have looked at Hitler’s path to power in 1930s Germany and thought, ‘Cool!’
Huppke refers to Project 2025, as “a painstakingly detailed and hellishly authoritarian plan for a second Trump presidency.” He notes that “according to The Heritage Foundation itself,” Trump “embraced nearly two-thirds of the policy recommendations.”
I would just add that the leader of Project 2025, and his allies, clearly see Ryan Walters’ Executive Review Committee as one part of their plan.
Politico recounts a story in the new issue of Vanity Fair about Robert F. Kennedy Jr. and what makes him tick:
WOWZA —Vanity Fair’s Joe Hagan is out with a buzzy profile of ROBERT F. KENNEDY JR. through the lens of his close friends and family, who describe the presidential candidate as a man whose life story is “marked by personal trauma and addiction to drugs, sex, and, perhaps most perniciously of all, public adulation.”
In some of the more alarming stories, Hogan’s report includes …
An on-the-record allegation of sexual assault from ELIZA COONEY, who was a young woman Kennedy had hired in the late 1990s to work as a babysitter and personal assistant.
A photo of Kennedy posing with the cooked remains of a dog while traveling in Korea. “The photo was taken in 2010, according to the digital file’s metadata — the same year he was diagnosed with a dead tapeworm in his brain.”
Allegations that he sent friends sexually explicit photos of women that may not have been taken consensually.
Writes Hogan: “Theories about Kennedy’s reckless behaviors abound. Long before it was reported, members of the family knew about the brain worm … But more often his family points to Kennedy’s 14 years as a heroin user.”
Greg Olear writes a terrific blog called PREVAIL about whatever he wants.
He writes about the Supreme Court’s latest decision placing the President above the law, freeing him to commmit crimes with absolute immunity from prosecution. He notes that they ignore history and the clear-cut intentions and writings of the Framers of the Constitution.
He is not a lawyer or a constitutional scholar. He explains in plain language how extreme this decision is by citing the dissenting Justices.
He writes:
A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people. —Declaration of Independence
Whatever the MAGA narrative about his alleged crime family, President Biden is as honest as politicians come, and regardless of his newfound kingly powers, he’s not going to recommission Alcatraz and send Trump there, or nationalize Fox News, or deport Elon Musk and Rupert Murdoch and Peter Thiel, or sic SEAL Team Six on SCOTUS. The guy won’t even pardon his son—the obvious victim of a humiliating political witch hunt—because he thinks it would be inappropriate. So it’s safe to say he’s not gonna go John Wick on Donald anytime soon. Brandon only runs so dark.
Furthermore, I am neither attorney nor law school graduate nor Supreme Court Kremlinologist. Legal texts bore me. Like, I don’t even like court procedurals. So I’d be lying if I told you I had any idea what the decision augurs for the FPOTUS, the election, or the future of the country. I’m going to defer, instead, to the experts who do know: three sitting Supreme Court Justices.
“The main takeaway of [yesterday]’s decision is that all of a President’s official acts, defined without regard to motive or intent, are entitled to immunity that is ‘at least…presumptive,’ and quite possibly ‘absolute,’” Sonia Sotomayor wrote, in a dissent for the ages. “Whenever the President wields the enormous power of his office, the majority says, the criminal law (at least presumptively) cannot touch him.”
We must presume a POTUS is immune from, basically, any potentially criminal act committed while he was in office. Ah, and who determines what he isn’t immune from? The Supreme Court! Fancy trick, that.
“In sum,” Sotomayor continues, “the majority today endorses an expansive vision of Presidential immunity that was never recognized by the Founders, any sitting President, the Executive Branch, or even President Trump’s lawyers, until now. Settled understandings of the Constitution are of little use to the majority in this case, and so it ignores them.”
In her own addendum to the dissent, Ketanji Brown Jackson discusses the IRL impact the decision will have:
In short, America has traditionally relied on the law to keep its Presidents in line. Starting today, however, Americans must rely on the courts to determine when (if at all) the criminal laws that their representatives have enacted to promote individual and collective security will operate as speedbumps to Presidential action or reaction. Once selfregulating, the Rule of Law now becomes the rule of judges, with courts pronouncing which crimes committed by a President have to be let go and which can be redressed as impermissible. So, ultimately, this Court itself will decide whether the law will be any barrier to whatever course of criminality emanates from the Oval Office in the future. The potential for great harm to American institutions and Americans themselves is obvious.
Obvious to anyone who is not a Leonard Leo radical Catholic reactionary weirdo on Harlan Crow’s payroll, that is.
And speaking of Leonard Leo radical Catholic reactionary weirdos, there is an “Easter egg” in the decision! In his concurrence, Clarence Thomas—who violated the law by not recusing from the case, not that Dick Durban gives a shit—shared his unsolicited opinion, clearly directed at the corrupt judge Aileen Cannon, that the Office of the Special Counsel should not exist, constitutionally speaking.
You might want to take your heart medication before reading this excerpt from Thomas’s little addendum, because this is next-level—which is to say, Kremlin-worthy—trolling:
I write separately to highlight another way in which this prosecution may violate our constitutional structure. In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been “established by Law,” as the Constitution requires. Art. II, §2, cl. 2. By requiring that Congress create federal offices “by Law,” the Constitution imposes an important check against the President—he cannot create offices at his pleasure. If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President.
Wow, someone really doesn’t want that case to go to trial! One can’t help but wonder, reading that oddly specific wording, what Clarence and/or his insurrectionist-adjacent wife might be hiding in regards to January 6th. Does Trump have something on them? Are they trying to protect themselves from eventual prosecution? Are they bona fide True Believers? Or is there something even more insidious happening chezClarence et Ginni?
Thomas may as well have borrowed Trump’s Sharpie and scrawled I AM A TRAITOR—or, better yet, я предател—on the hard copy of the decision. The man is an adenocarcinoma on the prostate of democracy. At this point, we must question, if not fully doubt, Thomas’s allegiance to the United States.
But the true evil genius of Trump v. United States, if you’re fash, is in the shielding of POTUS communications, such that, even if an act is deemed personal and unofficial, most of the available evidence to prove criminality isn’t admissible in court.
“Not content simply to invent an expansive criminal immunity for former Presidents,” Sotomayor explains, “the majority goes a dramatic and unprecedented step further. It says that acts for which the President is immune must be redacted from the narrative of even wholly private crimes committed while in office. They must play no role in proceedings regarding private criminal acts.”
In her dissent, Sotomayor lays out what the majority—which is to say, the aforementioned Leonard Leo radical Catholic reactionary weirdos—decided, why it’s “atextual, ahistorical, and unjustifiable,” and the malefic impact it will have on our democracy: (Note: I’m removing the references that appear after every other sentence, to make it easier for us non-lawyers to read.)
Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for “bold and unhesitating action” by the President, the Court gives former President Trump all the immunity he asked for and more. Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent….
The Court now confronts a question it has never had to answer in the Nation’s history: Whether a former President enjoys immunity from federal criminal prosecution. The majority thinks he should, and so it invents an atextual, ahistorical, and unjustifiable immunity that puts the President above the law. The majority makes three moves that, in effect, completely insulate Presidents from criminal liability. First, the majority creates absolute immunity for the President’s exercise of “core constitutional powers.” This holding is unnecessary on the facts of the indictment, and the majority’s attempt to apply it to the facts expands the concept of core powers beyond any recognizable bounds. In any event, it is quickly eclipsed by the second move, which is to create expansive immunity for all “official act[s].” Whether described as presumptive or absolute, under the majority’s rule, a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution. That is just as bad as it sounds, and it is baseless. Finally, the majority declares that evidence concerning acts for which the President is immune can play no role in any criminal prosecution against him. That holding, which will prevent the Government from using a President’s official acts to prove knowledge or intent in prosecuting private offenses, is nonsensical.
Argument by argument, the majority invents immunity through brute force. Under scrutiny, its arguments crumble. To start, the majority’s broad “official acts” immunity is inconsistent with text, history, and established understandings of the President’s role. Moreover, it is deeply wrong, even on its own functionalist terms. Next, the majority’s “core” immunity is both unnecessary and misguided. Furthermore, the majority’s illogical evidentiary holding is unprecedented. Finally, this majority’s project will have disastrous consequences for the Presidency and for our democracy.
What Trump v. United States does, as I am hardly the first to point out, is turn the president into a king. This is ironic, because for all of Alito’s and Thomas’s bluster about “originalism,” where they ask WWJD (where “J” stands for “Jefferson”), the one thing we Americans—even little kids, ffs!—know for sure about the Founders is that they did not want another king. How do we know this? They wrote a whole fucking letter about it and posted it to George III. You can see a copy at the National Archives Museum.
Anyway, said Troll King of the Supreme Court, Clarence Thomas, worked the George III stuff into his reasoning that Jack Smith has no more authority to indict Donald Trump than Jack White, Jack Black, Jack B. Nimble, or Jack B. Quick. “In fact, one of the grievances raised by the American colonists in declaring their independence was that the King ‘ha[d] erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance,’” Thomas writes, no doubt pleased with himself for working “erect” and “eat out” into a concurrence.
“The Founders thus drafted the Constitution with ‘evidently a great inferiority in the power of the President, in this particular, to that of the British king,’” he continues, noting that they “broke from the monarchial model by giving the President the power to fill offices (with the Senate’s approval), but not the power to create offices. They did so by ‘imposing the constitutional requirement that new officer positions be “established by Law” rather than through a King-like custom of the head magistrate unilaterally creating new offices.’”
In short, Clarence Thomas is attempting to eighty-six Jack Smith on the grounds that the Founders explicitly rejected a “monarchial model,” while simultaneously arguing that Trump should be given kingly powers.
These bought-and-paid-for fascists are just fucking with us at this point.
The last six paragraphs of Sotomayor’s dissent are, in a word, chilling. Again, I’ve not read many Supreme Court decisions, but I’d be surprised if this were not the first one that mentioned the possibility of a president tapping SEAL Team Six to whack a political rival.
There’s no way to sugarcoat it: this is the senior liberal justice on the Supreme Court freaking the fuck out about what Roberts and his reactionary chums have unleashed. Lines from this section have been quoted in every article published about the decision, but I’m going to include the entire excerpt, for maximum impact:
Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation. The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.
Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.
Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. 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.
The majority’s single-minded fixation on the President’s need for boldness and dispatch ignores the countervailing need for accountability and restraint. The Framers were not so single-minded. In the Federalist Papers, after “endeavor[ing] to show” that the Executive designed by the Constitution “combines . . . all the requisites to energy,” Alexander Hamilton asked a separate, equally important question: “Does it also combine the requisites to safety, in a republican sense, a due dependence on the people, a due responsibility?” The answer then was yes, based in part upon the President’s vulnerability to “prosecution in the common course of law.” The answer after today is no.
Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.
With fear for our democracy, I dissent.
Six weeks ago, Sotomayor spoke at the Radcliffe Institute for Advanced Study at Harvard University, where she was honored with an award. She was remarkably candid about her experience working with six fascists. “There are days that I’ve come to my office after an announcement of a case and closed my door and cried,” she said. “There have been those days. And there are likely to be more.”
I wonder if the immunity case was one of the times Sotomayor wept in her office—or if the ugly future it portends was too horrifying for the tears to come.
Diane Ravitch's blog 