Archives for category: Justice

The supermajority of Republicans in the Tennessee legislature are driving fast and hard to enact universal vouchers, which means the state will subsidize the tuition of students in private and religious schools, regardless of family income. In every other state that has adopted universal vouchers, most of the students who sought them had never attended public schools. The voucher was used by families who could afford to pay tuition. The voucher was a nice plum for families that didn’t need it. And many of the voucher/receiving schools were openly discriminatory—against students not of their own religion, against LGBT students, against students with disabilities.

The Unity Group is a coalition of African American community leaders in Chattanooga.

It released the following statement:


February 6, 2024

Cc: Unity Group of Chattanooga Opposition to Universal School Voucher Program

This week, the Tennessee General Assembly is expected to begin the process of crafting legislation that would permanently affix universal school vouchers throughout the State.

On the surface, this would appear to be a worthwhile and noble goal. We hear numerous romanticized soliloquies to describe why this is justified, such as providing expanded access, flexibility, choice, and opportunity. The glossy and rosy pictures they paint would have one to believe that universal vouchers were the best thing for schools and students since assorted Crayola boxes, number two pencils, and Mr. Rodgers and Sesame Street starting on PBS.

Yet, the research and data paint a starkly different picture. In fact, at a budget hearing held in November 2023, the State’s own Department of Education had to concede that 63 of the 75 schools that received funding from the State’s budget program, well over 80%, were “private “religious “schools in nature. Even more shocking is that last week, a report from the Education Trust concluded that 39% of TN school districts receive less in per-student funding than students that used private school vouchers.

Also last week, a draft plan of the proposed legislation was leaked that illustrated that the expanded voucher program would have no accountability measures, no anti-discrimination provisions, and no safeguards for students with disabilities. It is no wonder that there was consideration to forgo federal education funding because not only does this proposal not pass the smell test, but it very well could be in violation of federal law under the Elementary and Secondary Education Act.

As a matter of record, there have already been multiple lawsuits launched that have challenged the constitutionality of the State’s voucher program, and in fact in January the Tennessee Court of Appeals ruled that Davidson and Shelby County families could go forward with a potential suit.

From a fiscal management sense, the projected amount universal vouchers will cost Tennessee taxpayers is murky at best. If the budget shortfalls we have seen occur in other States are any indicator, then we can expect major cost overruns that will go down the well so deep it will eventually run dry.

A 2023 report from the Southern Poverty Law Center and Education Law Center provides a good analysis on this. In The Fiscal Consequences of Private School Vouchers, it was found that between 2008-2019, voucher disbursements in at least 7 states doubled in contrast to initial budgetary projections.

In Arizona alone, voucher spending for the current academic year is more than 300 million over initial estimates; it is expected that the State may spend close to 1 billion dollars for their voucher program. In North Carolina, there were reports where some schools received more vouchers than they had students. There are also numerous reports that voucher recipients from states across the country have made highly questionable purchases like theme park tickets, kayaks, trampolines and yes, in one instance a chicken coop.

It does beg the question, will one able to use universal voucher funds to build a chicken coop in Tennessee as we have witnessed in other states.

Perhaps most profoundly, the process in which the universal voucher program is being crafted is both procedurally and fundamentally flawed. While there has been a basic framework “leaked” to the public, there remains critical questions about transparency, accountability, and oversight. The general publichas received little to no official details on this plan, only that the voucher program is being filed as a caption bill which, if we can borrow from a metaphor taught to our youngest students, lacks the “who, what, when, where, why, and how.”

In a perfect world, legislation of such consequence would merit a public hearing where experts on all sides would gather to provide analysis, evaluation, insights, and recommendations. The directly impacted people such as your local school boards and local education agencies would be invited to detail if the proposed legislation would have a positive or negative effect on them. The people of Tennessee, the taxpayers who would ultimately have to foot the bill, would be allowed to give sworn testimonies like they do in their city councils, county commissions and school boards.

Without such a process along these lines, can the legislators in Nashville really be able to measure the temperature across the State? Will they truly be able to establish public faith, confidence or trust if a potentially harmful program is simply ramrodded down the taxpayer’s proverbial throats?

The Economic Policy Institute released a rather frank and somber assessment on the growing school voucher moment in 2023 entitled, “State and local experience proves school vouchers are a failed policy that must be opposed.” They noted that at least 23 voucher bills were introduced in state houses last year, with universal bills passing. They noted that there is, “growing evidence that voucher programs do not serve students and may deepen educational and economic inequality.”

Further assessments found within the report are: (1) Evidence and research suggests vouchers do not improve academic achievement or education outcomes; (2) Vouchers represented a redistribution of school funding; (3) Vouchers benefited more wealthy and affluent areas over low income and rural. Amongst other major points of contention, one of the more profound conclusions of this analysis is that universal vouchers are, “Ineffective, inefficient, and inequitable.”

A decision that will affect schools and districts throughout the State, rural and urban, merits greater public discourse, fiscal analysis, and research-based evidence. The lack of this type of transparency will truly make the universal voucher program, “Ineffective, inefficient, and inequitable.” For these reasons, the Unity Group of Chattanooga must be adamantly opposed because this program will not solely be about autonomy, school choice or expanded options, rather, it will be ushering in a new era of Separate but Equal; and for the sake of our children, we must be better than that.

 

Yours in Abundance,

Unity Group of Chattanooga

Donald Trump has delayed his trial on charges that he tried to overturn the 2020 election by claiming that he enjoys “presidential immunity” for everything he did while in office. The federal district judge hearing his case—Judge Tanya S. Chutkan— ruled against him. Today a three-judge federal appeals court ruled against him. The three judges were two appointed by Democratic presidents and one appointed by a Republican president.

It is a historic decision. It is a history lesson of the utmost importance.

I urge you to read it.

It is a stirring defense of democracy and the rule of law.

A few citations:

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

We have balanced former President Trump’s asserted interests in executive immunity against the vital public interests that favor allowing this prosecution to proceed. We conclude that ‘Concerns of public policy, especially as illuminated by our history and the structure of our government’ compel the rejection of his claim of immunity in this case…

We also have considered his contention that he is entitled to categorical immunity from criminal liability for any assertedly ‘official’ action that he took as President—a contention that is unsupported by precedent, history or the text and structure of the Constitution. Finally, we are unpersuaded by his argument that this prosecution is barred by ‘double jeopardy principles.’

The justices ruled that what Trump sought (immunity from prosecution) was an unprecedented assault on the structure of our government

We cannot accept former President Trump’s claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results. Nor can we sanction his apparent contention that the Executive has carte blanche to violate the rights of individual citizens to vote and to have their votes count…

It would be a striking paradox if the President, who alone is vested with the constitutional duty to “take Care that the laws be faithfully executed,” were the sole officer capable of defying those laws with impunity…

The quadrennial Presidential election is a crucial check on executive power because a President who adopts unpopular policies or violates the law can be voted out of office.

We cannot accept former President Trump’s claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power—the recognition and implementation of election results. Nor can we sanction his apparent contention that the Executive has carte blanche to violate the rights of individual citizens to vote and to have their votes count.

Former President Trump’s alleged efforts to remain in power despite losing the 2020 election were, if proven, an unprecedented assault on the structure of our government. He allegedly injected himself into a process in which the President has no role—the counting and certifying of the Electoral College votes—thereby undermining constitutionally established procedures and the will of Congress …

At bottom, former President Trump’s stance would collapse our system of separated powers by placing the President beyond the reach of all three Branches. Presidential immunity against federal indictment would mean that, as to the President, the Congress could not legislate, the Executive could not prosecute and the Judiciary could not review. We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter. Careful evaluation of these concerns leads us to conclude that there is no functional justification for immunizing former Presidents from federal prosecution in general or for immunizing former President Trump from the specific charges in the Indictment. In so holding, we act, “not in derogation of the separation of powers, but to maintain their proper balance.”

The judges pointed out that other presidents have recognized that they were not immune from prosecution after they left office. That’s why President Ford pardoned President Nixon and why President Clinton accepted a deal to pay a fine and surrender his law license when he left office.

They noted the irony that the President is sworn to Take Care that the laws are faithfully executed yet was appealing to be immune from those laws.

It’s a good read.

In a decision that was a happy surprise, the Supreme Court ruled in favor of the Biden administration’s view that federal law controls international borders, not state law.

The vote was 5-4, with Chief Justice John Roberts and Justice Amy Coney Barrett voting with the three liberal justices.

Governor Greg Abbott ordered that razor wire and buoys be strung across the Rio Grand at locations where migrants were crossing from Mexico to Texas. The U.S. Botder Patrol was blocked by the Texas National Guard, which took control of policing the border. Three migrants, a woman and her two young children, drowned while the Texas National Guard watched and prevented the Border Patrol from rendering assistance.

The Biden administration sued the state of Texas, asserting the primacy of federal law. The federal district court ruled in favor of the federal government. Texas appealed to the Fifth Circuit Court of Appeals, one of the most conservative in the nation, which ruled in favor of Texas. Many legal scholars thought that ruling was bizarre.

The Supreme Court ruled in favor of the federal government and against Texas, meaning that the U.S. Border Patrol will resume their duties. This decision is a knock on the secessionist inclinations of far-right firebrand Greg Abbott and the Texas Attorney General Ken Paxton.

This decision knocked down the claim that state law could override federal law and that a state on the international border could take control.

What’s truly shocking is that four justices were willing to give states the authority to overrule federal law. Shades of 1860!

There has been a heated debate on the blog about charges that District Attorney Fani Willis was romantically involved with prosecutor Nathan Wade. Defendants’s lawyers suggest the case should be thrown out or the entire prosecution team be replaced. Clearly, the public needs to know more about what happened before reaching judgment. As Nikki Haley has said repeatedly about Trump, “wherever he goes, chaos follows.” That may be why he’s been so successful in the courts in more than 3,500 cases—evasion, delay, chaos.

Our reader “Democracy” added this insight:

Here’s more on the Fanni Willis “scandal” from today’s NY Times, and other media, along with some comments from me:

“the bombshell accusations have rocked the criminal case — one of four Trump faces this year as he also seeks a second term in the White House. Trump blasted Willis and Wade over the allegations again on Friday, calling the prosecutors ‘the lovebirds’ and accusing them of targeting him ‘to ENRICH themselves, and to live the Lifestyle of the Rich and Famous!’ In posts on his social media platform, Trump called for the prosecutors to ‘face appropriate consequences’ and for charges against him to be dismissed.”

•• It’s rather rich for Trump to be ridiculing ANYONE about trying to enrich himself, and it’s the height of hypocrisy for Trump to be demanding “appropriate consequences” for Fanni Willis when he is doing everything he can to try and evade accountability for himself.

“Roman’s motion argues that Ms. Willis and Mr. Wade violated the state bar’s rules of professional conduct, the county code regarding conflicts of interest and, possibly, federal law. It calls for the case against Mr. Roman to be dismissed, and for Mr. Wade, Ms. Willis and Ms. Willis’s entire office to be disqualified from the case.”

•• Whether or not Fanni Willis violated any code of professional conduct remains to be seen, and it seems that a pretty good case can be made that she did not. But, yeah, optics matter. Still, there is a STRONG legal case AGAINST Mr. Roman that is completely UNRELATED to WIllis taking a private trip or two with Mr. Wade.

“On Saturday morning, Norman Eisen, special counsel to the House Judiciary Committee during the first Trump impeachment, who has been vocal in supporting the Georgia prosecution, called on Mr. Wade to step down, saying that the recent allegation of an affair ‘had become a distraction.’ ”

•• That’s the WHOLE point of this sordid nonsense, is it not? To cause a distraction from the fact that Trump AND his accomplices tried to steal the electoral votes in Georgia away from Mr. Trump by throwing out the verified, certified election results. Also, if in fact Wade were to resign, wouldn’t THAT be a legitimate end to the issue?

“For years, Mr. Wade was a regular at county Republican breakfast meetings, and he served for a time as a delegate to the county convention, said Jason Shepherd, who chaired the Cobb County Republican Party at the time…In 2016, during one of his unsuccessful attempts to run for Cobb County superior court judge, he was supported by Ashleigh Merchant — the lawyer who filed the motion this month on Mr. Roman’s behalf that seeks to have him removed from the Trump case. The motion questions Mr. Wade’s qualifications. But in a Facebook post in the midst of his judge’s race, she praised him for his extensive résumé…’Nathan has practiced in every area of the law that appears before the Superior Court bench,’ she wrote.”

•• Ahem

Let’s rehash here. As PBS News Hour reported two short days ago,

“Trump and Roman were indicted by a Fulton County grand jury in August along with 17 others. They’re accused of participating in a wide-ranging scheme to try to illegally overturn the 2020 presidential election in Georgia. Four of those charged have already pleaded guilty after reaching deals with prosecutors. Trump, Roman and the others who remain have pleaded not guilty…Roman was the director of Election Day operations for the Trump campaign and also had worked in the White House…Prosecutors say he helped coordinate an effort to contact state lawmakers on Trump’s behalf to encourage them to ‘unlawfully appoint presidential electors.’…He is also alleged to have been involved in efforts to have Republicans in swing states that Trump lost, including Georgia, meet on Dec. 14, 2020, to sign certificates falsely saying Trump had won their states and that they were the electors for their states. He was in touch with local Republican officials in several states to set up those meetings.”

And yet Roman (and Trump, and a whole cast of other weirdos), think that private “dating” or a few private trips somehow create an act of immense impropriety that should THROW OUT legally obtained indictments for subverting the 2020 presidential election returns in the state of Georgia, thereby disenfranchising every single voter who cast a ballot for Mr. Biden.

This is beyond stupid, is it not?

Michael Roman’s attorney, Ashleigh Merchant has asked not only that Fanni Willis and Nathan Wade BE REMOVED from this case but also that ALL CHARGES against Roman BE DROPPED.

Here are some other cases where Ashleigh Merchant demanded that charges be dropped. Take a peek.

2017: https://caselaw.findlaw.com/court/ga-supreme-court/1862249.html

2021: “In addition to Matthews’s admission that he stabbed Young, his cell phone records and his knowledge of information about the crime scene that the police had deliberately withheld from the public supported a finding that he was present when the crime occurred. Evidence found in his home and in the adjacent dumpster, including the set of steak knives that matched the knife blade found on Young’s body, Young’s debit and credit cards, and the cap that one of the men using Young’s debit card was wearing just after the murder, also connected him to the crimes. The evidence was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Matthews was guilty of malice murder and possession of a knife during the commission of a crime.”

“Count 6 of the indictment charged Matthews with knowingly taking without consent a Bank of America Visa debit card, which was “issued to Adrianne Young as cardholder and from whose possession the said card was taken.” A rational trier of fact could find beyond a reasonable doubt that Matthews was guilty of financial transaction card theft from the evidence presented, including evidence that debit cards and a credit card belonging to Young were found in the dumpster adjacent to Matthews’s residence, that Young’s purse was missing from the crime scene, and that Matthews attempted to use Young’s debit card within an hour of her murder.”

https://casetext.com/case/matthews-v-state-2093

2022: https://caselaw.findlaw.com/court/ga-supreme-court/2162540.html

2023:  https://casetext.com/case/kim-v-state-60

Kind of makes one wonder.

In case you have not read the Amendments to the Constitution lately, you will learn something new in this post. Michael Meltsner wrote in The American Prospect that Section 2 of the Fourteenth Amendment is as important as the well-discussed Section 3 (which says that a person who has taken the oath of office and engaged in an insurrection may not run for federal office). As I hope you know, Amendments 13, 14, and 15 were written in the aftermath of the Civil War and were meant to abolish slavery, guarantee equal rights to all Americans, and establish the right to vote.

Here is Section 2:

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.

Meltsner wrote:

Attention in recent days has been paid to the Colorado Supreme Court’s ruling that Donald Trump can be barred from the presidential ballot for participating in an insurrection as ordered by Section 3 of the 14th Amendment. Maine’s secretary of state has also ruled Trump out. But under the radar, a separate case involving that amendment has been working through the courts, which would be just as impactful for the outcome of the 2024 elections.

About a year ago, I reported in the Prospect on a pending lawsuit filed on behalf of a citizens group by former Department of Justice lawyer Jared Pettinato. The suit asks that the Census Bureau be required to enforce Section 2 of the 14th Amendment, enacted in 1868 to strip congressional representation from states that disfranchise voters. The text applies to general methods states adopt that keep people from voting and is not limited to racial discrimination. The proportional loss of congressional representation would also reduce the votes that states would get in the Electoral College.

The Section 2 case is now moving toward resolution. Briefs have been filed, and oral argument is expected shortly before the court of appeals in Washington, D.C.

Cases involving the two constitutional provisions of the 14th Amendment have major differences and striking similarities. Neither has been authoritatively interpreted.

On a structural level, enforcing Section 2 for the first time would conceivably sanction and thus potentially eliminate the web of restrictions and hurdles that keep substantial numbers of citizens from casting a vote. Some states would lose representatives, and electoral votes, to states that make it easier to vote. In contrast, the Section 3 insurrection issue is individualized, dealing only with a former president whose misdeeds are unique in American history.

But in both cases, the courts are being asked to render decisions that could change the political balance of power, outcomes that involve judicial intervention similar to the much-criticized Bush v. Gore decision that determined the presidency in 2000.

Finally, the odds are that the Colorado case will be reversed by the Supreme Court, while the future of the citizens group challenge under Section 2, while a long shot, is far from settled.

In the Section 2 case, a trial court decided that the plaintiffs lacked legal standing, in large part because they hadn’t sufficiently shown that specific states would certainly lose and gain seats. But Pettinato’s complaint alleges at least one concrete disfranchisement scenario (and others are obvious).

Wisconsin’s 2011 voter ID law prevented 300,000 registered voters who lacked identification from casting a ballot, according to U.S. District Court Judge Lynn Adelman. This finding was accepted as true on appeal, and should be accepted as true at this stage of the Section 2 litigation. As 300,000 registered voters is approximately 9 percent of Wisconsin’s total registrants, the complaint reasons that Wisconsin should lose 9 percent of its representatives, equal to one member of Congress and one electoral vote. Another state would gain that representative.

It may be significant that DOJ lawyers have now injected a new defense in their brief in the court of appeals, a move that often signals a belief that the theory relied on in the lower court is ultimately unpersuasive.

It’s amazing that, given the central role courts construing constitutional texts play in our public life, the terms of operationalizing the 135 words of Section 2 have never been settled in over 150 years. The few lawsuits brought under its terms have almost all found ways to avoid enforcement. Only one case, which I filed in the 1960s when I was first assistant counsel at the NAACP Legal Defense Fund, had a different and unusual outcome. In that case brought by a group led by feminist and civil rights leader Daisy Lampkin, the judges unanimously took remedying disfranchisement by enforcing Section 2 seriously, but stayed their hand because they supposed the Voting Rights Act of 1965 might make enforcing it unnecessary.

Regardless of the outcome in the court of appeals, the Supreme Court will be asked to decide whether the Constitution’s explicit remedy for disfranchisement has life or should be ignored. The Court has many tools that can be used to continue the tradition of nonenforcement. Standing to sue doctrine allows avoiding decisions on the merits; but with respect to Section 2, continued use of it in case after case amounts to saying that what the Constitution says doesn’t matter. For a judiciary that roams across the scope of American life in its decisions, such an outcome can only be seen as random, and thus really political, decision-making. And deciding the Section 3 case to allow Trump back onto the ballot while avoiding a decision in the Section 2 case would have clear political overtones.

Plus, failing to recognize the vitality of Section 2 will surely raise the specter of hypocrisy, as conservative justices have often looked to the original understanding of constitutional texts to justify decisions, an approach that would bring the 1868 disfranchisement remedy to the present day.

Here is another view of Section 2: https://constitution.findlaw.com/amendment14/annotation12.html#

Well, here is another “hostage” or “patriot” for Trump to pardon if he is re-elected. A 58-year-old man from Florida who was a member of the “Proud Boys, not even a man. He beat up several police officers during an event on January 6, 2021, that Trumpers insist was “a normal tourist visit” or (as the president of the Republican National Committee put it) “legitimate political discourse.” Clearly, this is not the party of law and order.

The Miami Herald reported:

A South Florida member of the far-right Proud Boys was sentenced to five years in prison Wednesday after federal prosecutors described him as “one of the most violent January 6 rioters” who assaulted at least six police officers while attacking the U.S. Capitol three years ago.

Kenneth Bonawitz, 58, of Pompano Beach, grabbed one of the officers in a choke hold and lifted her up and injured another so badly that he was forced to retire, according to federal prosecutors.

Bonawitz, a member of the Miami chapter of the Proud Boys, was carrying an 8-inch knife in a sheath on his hip when he stormed the Capitol with a mob of Donald Trump supporters after gathering for the president’s “Stop the Steal” rally on the Ellipse before the attack.

“Police seized the knife from him in between his barrage of attacks on officers,“ Assistant U.S. Attorney Sean McCauley wrote in a sentencing memo recommending the high end of the guidelines, or nearly six years in prison. “His violent, and repeated, assaults on multiple officers are among the worst attacks that occurred that day.”

U.S. District Judge Jia Cobb in Washington DC gave Bonawitz a five-year sentence, followed by three years of supervised release. Arrested a year ago, he pleaded guilty in August to three felonies — one count of civil disorder and two counts of assaulting police.

Bonawitz arrived in DC via a chartered bus for Trump supporters.

After police confiscated his knife and released him, Bonawitz assaulted four more officers in the span of seven seconds, according to court records. He placed one of the officers in a headlock and lifted her off the ground, choking her.

“Bonawitz’s attacks did not stop until (police) officers pushed him back into the crowd for a second time and deployed chemical agent to his face,” the prosecutor wrote in the sentencing memo. More than 100 police officers were injured during the siege.

And yet the Trump people say the event was organized by the FBI or Antifa.

Read more at: https://www.miamiherald.com/news/local/article284387720.html#storylink=cpy

The text messages between Ginni Thomas, wife of Supreme Court Justice Clarence Thomas, and Mark Meadows, Trump’s chief of staff, show how determined Ginni Thomas was to keep Trump in office. She was certain that Democrats were stealing the election. She urged Meadows to listen closely to lawyer Sidney Powell. She urged Meadows to “release the kraken,” Powell’s words. Even when Meadows told her that Powell had no evidence of voter fraud, Ginni Thomas was undeterred.

Note: Sidney Powell subsequently claimed that no reasonable person would believe what she said about the election. When indicted in Atlanta for lying about the election, she pleaded guilty. But Ginni Thomas believed her. This suggests that Ginni Thomas is not a “reasonable person.”

If you listen to the text exchanges, you are likely to conclude that Justice Thomas must recuse himself from any case brought to the Supreme Court about the 2020 election. He is not impartial.

This message was tweeted by Denver Riggleman, a former Republican Congressman from Virginia who served as a technical advisor to the January 6 Committee.

Denver Riggleman⁦‪@RepRiggleman‬⁩On the 3-year anniversary of #Jan6, I read aloud all 29 texts between Ginni Thomas and Mark Meadows.

It’s a reminder of the delusion that fueled the J6 attack- all the way to the top. Listen to the Bourbon texts because you’ll need a drink. youtu.be/UeDqnuSlrCA?si… via ⁦‪@YouTube‬⁩ 1/6/24, 9:12 PM

Reports at the hearings in a federal appeals court suggest that the three judges seemed skeptical of Trump’s claim that he is immune from prosecution for any action taken while he was president, unlesss he was impeached and convicted for that offense.

The New York Times reported:

Three federal appeals court judges expressed deep skepticism on Tuesday about former President Donald J. Trump’s central defense to an indictment accusing him of plotting to overturn the 2020 election: that he is immune to the charges because they arose from actions he took as president.

All of the judges on the three-member panel of the U.S. Court of Appeals for the District of Columbia Circuit — composed of two Democratic appointees and one Republican appointee — peppered a lawyer for Mr. Trump with tough questions about arguments he raised to support the immunity claims.

While the three judges also pressed James I. Pearce — a lawyer representing the special counsel, Jack Smith — their queries to him were not quite as aggressive. The panel adjourned the hearing after about an hour and 15 minutes and reserved judgment for another day.

The case is expected to eventually reach the Supreme Court. Its pace and outcome will be central in deciding when — or even whether — Mr. Trump will go to trial in the election interference case, which is unfolding in Federal District Court in Washington. It could also go a long way in determining the timing of the three other criminal trials that Mr. Trump is facing in the months ahead.

In one tough moment for Mr. Trump, who was present for the hearing but did not speak, Judge Karen L. Henderson, the sole Republican appointee on the panel, pushed back on an argument made by his lawyer, D. John Sauer, that for more than 200 years, American courts had never sat in judgment over official actions that a president had taken while in office.

Judge Henderson pointed out that until Mr. Trump was indicted, courts had never had to consider the criminal liability of former presidents for things they did in the White House.

Judge Henderson also seemed less than persuaded by Mr. Sauer’s argument that Mr. Trump was acting in his role as president and upholding his constitutional duty to preserve the integrity of the election when he sought to overturn his loss to President Biden.

“I think it’s paradoxical to say that his constitutional duty to ‘take care that the laws be faithfully executed’ allows him to violate criminal law,” Judge Henderson said.

At one point, Judge Florence I. Pan presented Mr. Sauer with an hypothetical situation, asking if a president could be criminally charged for ordering SEAL Team 6 — an elite commando unit — to assassinate a political rival. Mr. Sauer said that a prosecution would be possible in that situation only if the president had first been found guilty in an impeachment proceeding.

When Mr. Pearce addressed the court on behalf of the special counsel’s office, he seized on Judge Pan’s example. Mr. Pearce said it was a terrifying prospect that a president could use the military to murder a rival and then escape criminal liability by simply resigning before he could be impeached.

Mr. Pearce fended off a question by the judges asking if a ruling denying Mr. Trump immunity would trigger a flood of partisan charges against future presidents by arguing that Mr. Trump was a unique case as the only president in U.S. history to have ever been charged with a crime.

Because no former president has ever been prosecuted before, there are few definitive precedents to guide the appellate judges in deciding the question of immunity. While the Justice Department has long maintained a policy that sitting presidents cannot be indicted, Mr. Trump’s bid to claim total immunity from prosecution is a remarkable attempt to claim the protections of the presidency even though he is no longer in office.

I wrote a few days ago that Trump should not be removed from the ballot even though he unequivocally plotted to overturn the election he lost and provoked an insurrection against the orderly transfer of power. I was wrong. For me, it was a close call: I wanted him to lose convincingly at the hands of the voters; I predicted he would lose by 10 million votes in 2024.

But it should not have been a close call. Trump should not be allowed to run again. He violated his oath of office. I was persuaded I was wrong by the many comments by readers on this blog, by reading the new insider books by Liz Cheney and Cassidy Hutchinson, and by continuing to read other opinions, like that of Jamelle Bouie, whose columns will follow this one today.

Trump was exactly the kind of office-holder described in Section 3 of the Fourteenth Amendment:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

In the lower federal court in Colorado, Judge Sarah B. Wallace ruled that Trump engaged in insurrection on January 6, 2021, but concluded that the President of the U.S. was not an “officer” as defined in the amendment. This was a bizarre conclusion, and the Supreme Court of Colorado ruled by a vote of 4-3 that Trump should not be allowed to run for President because he did take an oath to support the Constitution, he served as the highest officer of the nation, and he did engage in an insurrection against the Constitution to which he swore an oath. It’s no more complicated than that.

The Supreme Court will review that decision.

Trump continues to tell the Big Lie. Despite the fact that he lost 60 court decisions, including decisions by judges he appointed, including two decisions by the U.S. Supreme Court; despite the fact that his own Attorney General and his White House Counsel told him he lost, he continues to lie.

Trump continues to praise the insurrectionists. He has promised to pardon all of them who were convicted and sent to prison. He calls them “patriots” even though they defiled the U.S. Capitol, the seat of our government, and threatened the lives of Trump’s Vice President Mike Pence and the Speaker of the House Nancy Pelosi and violently attacked police officers.

The members of Congress escaped the chamber where they were counting the electoral vote only minutes before Trump’s devoted followers broke through the doors. Had they broken through only five minutes sooner, there might have been a bloodbath, a massacre of our elected representatives. Some “patriots”!

Judges should not reach a decision based on fear of Trump’s mob.

Either the Constitution means what it says or it means whatever a politically appointed group of justices decide it says in contravention of the words themselves.

Either “no man is above the law” or only one man—named Donald Trump—is above the law.

Trump betrayed Section 3 of the Fourteenth Amendment. He betrayed his oath of office. He incited, provoked, and engaged in an insurrection against the Constitution and the government that he swore to support.

Donald Trump should be removed from the ballot.

I discovered this post by a young Jewish woman about her reaction to the conflict in the Middle East. This was the post that helped me formulate my own views because I resonated with hers.

Rose Win is a blogger and digital nomad. She recently settled in Boulder, Colorado after two years of writing and traveling solo around the country. She grew up in Seattle and lived in Israel as a child and young adult. She shares here her reflections on the state of the war in Gaza.

She writes:

I wrote in my last post that I have been plagued by writer’s block. That is true, to an extent. There have been a lot of stories in the past couple of months I’ve wanted to write about. My parents came for Thanksgiving. Karina visited. I went back to San Marcos to see Kasey and Evie. I joined a rock climbing gym. I got deathly ill. One subject, however, has stood in my way like a giant, impenetrable barrier. War.

I can’t get past it. Everything else seems ridiculous, and trivial, and out of touch in comparison.

Specifically, I’m talking about the war in Gaza. I don’t know how many drafts I’ve written trying to cohere my thoughts, distill my feelings. My head swims and my heart aches, but I can’t find ethical, or intellectual, or emotional clarity. I keep getting stuck in a labyrinth of contradiction, locked between layers of devastation. So this post is a mishmash, a dumping, a meandering reflection of the competing and overlapping circles in my head.

The foundational layer of devastation, as I wrote before, is the sadistic slaughter of Jewish lives. The maiming, the raping, the abducting, the wholesale massacring. From there emerge the layers wrought by the world’s response. The mindboggling, Orwellian universe where murder becomes a “justified act of resistance,” where killers are “victims of oppression,” and rapists are “freedom fighters.” Or maybe they’re not rapists at all, because for some reason, violence against Jewish women isn’t believable. For some reason, Jewish women need to make their own pathetic hashtag to be heard: #MeTooUnlessYoureAJew.

There’s a new layer of consciousness: the sickening realization that the antisemitism of the 20th century never went away. It just lay dormant, hidden under the surface – waiting for the right opportunity to shapeshift and rear its ugly head. “The Jews are parasites living on other people’s lands. They deserve to die,” said the antisemites of the 20th century. “The Jews are occupiers of other people’s lands. They deserve to die,” say the antisemites of the 21st century.

There’s the hubris of the left which, using the lens of intersectionality, casts the war in racialized terms, white people oppressing brown people. Never mind that more than half of Israel’s Jews are “brown,” hailing from Arab counties that expelled, or, “ethnically cleansed” their Jewish populations in the late 1940s and 1950s following Israel’s creation.

Today’s liberal college campuses preach “language is violence.” Students police speech to minimize “harm.” Except speech against Jews. Because for some reason saying “genocide to Jews” is not violent, or hateful, or harmful. For some reason, chanting genocide to Jews is okay “depending on the context.”

I watch people condemn Israel for committing genocide against Palestinians. I’d like to know why Hamas’ charter, which, in no uncertain terms calls for the annihilation of the Jews and the establishment of an Islamist state in Israel, is not also condemned as genocidal? Why are the Palestinians seen as the rightful, indigenous inhabitants of the land when the Jews, whose presence predates the Palestinians, are not? Why is it that, in the aftermath of the Holocaust, the Jews were the world’s refugees, but following the creation of the state of Israel, they are the world’s most reviled colonizers? Why is a Jewish state with a Palestinian minority deemed racist, but a Palestinian state with a Jewish minority deemed righteous?

The questions seem simple. The answers are anything but. I want to defend Israel. I want to rage at the hypocrisy and blatant double standards. But I’m stopped. I can’t. Because look at Gaza. Neighborhoods razed to the ground. Wholesale cities decimated. Thousands and upon thousands of women and children dead. Eighty percent of the population displaced – facing polluted water, starvation, overcrowding, flooding, freezing, and rampant disease.

Israel told over a million people in northern Gaza to flee to the south. Then they bombed the south. “Gaza becomes a graveyard for children” reads one headline. “Nowhere is safe” says the next. Here’s another: “We have the right to live.”

I want to demand “ceasefire now!” because this level of humanitarian catastrophe is so breathtakingly horrific it’s hard to even fathom. Because this level of collective punishment cannot be justified. Because this destruction, this sheer loss of civilian life, cannot go on.

I want to demand “ceasefire now” because I despise Benjamin Netanyahu and the thugs and zealots that rule his repulsive right-wing government. Netanyahu is cut from the same cloth as Putin. He knows Israel holds him responsible for the attacks on Oct 7. The end of the war spells his demise. So, the war will wage on. Because narcissistic demagogues never willingly cede power.

I want to demand “ceasefire now.” But I haven’t.

Does a ceasefire mean Hamas will remilitarize – rearm and resume its genocidal charter to wipe out the Jews? Does a ceasefire leave Hamas’ sprawling tunnel system – built underneath hospitals, grocery stores, schools, universities, private homes, and graveyards – intact so they can infiltrate Israel and terrorize its citizens again? Does a ceasefire condemn the remaining 115 Israeli hostages to death? Does a ceasefire send a message to other Arab countries, waiting in the wings, that Israel is weak, and the Jewish state can be destroyed?

Are any of these questions justifiable? I don’t know. I don’t know.


When the world accuses Israel of being an apartheid state, I want to push back. Apartheid refers to the brutal system of institutionalized racial segregation in South Africa. Israel, albeit flawed, is a multi-ethnic, multi-racial, muti-cultural democratic state, where a fifth of the population isn’t Jewish yet has the same civil and legal rights as every other citizen.

But. That only rings true for those living within Israel’s green line – the 1949 armistice border. Following the war of 1967, Israel gained the Golan Heights from Syria, Gaza from Egypt, and the West Bank from Jordan. With the exception of Gaza, where Israel pulled out in 2005, those territories have been occupied ever since (though Israel, along with Egypt, maintained control over Gaza’s borders).

Israel’s occupation of the West Bank is illegal under international law. It never annexed the West Bank, because giving Palestinians Israeli citizenship would mean the end of Israel as a Jewish state. So one Israeli government after the next left Palestinians in stateless limbo, while sanctioning illegal Jewish settlement construction that zig-zagged through contiguous territory and punctured holes through the dream of Palestinian statehood. All the while Israel offered Jewish settlers – often messianic, often self-righteous, often violent – full rights of Israeli citizenship and subjected Palestinians to military rule.

So, yes, Israel can claim it’s the only pluralistic democracy in the Middle East. But also, no, it cannot.


In his book documenting bereaved families of the Palestinian-Israeli conflict, author Colum McCann talked about his decision to title his book Apeirogon:

“Apeirogon is a weird word, I know. An apeirogon can’t really be drawn, it can only be suggested… But I loved it from the moment I heard about it. The idea that it had an infinite number of sides was attractive to me because I knew it wasn’t a two-sided situation, that it wasn’t balanced.”

This is how I feel when I write and think about Israel. Sides upon sides upon sides upon sides. Overlapping truths. Overlapping contradictions. Questions without answers. Problems without solutions.

There’s a reason why I’ve written draft after draft after draft. Everywhere I turn I’m stuck. I want to take a stand, but every stand I take conflicts with another. That’s why I haven’t written. That’s why I must write.