Citizen Cartwright

U.S. democracy at risk

My thanks to the reader who alerted me to "A Trump dictatorship is increasingly inevitable. We should stop pretending,” an opinion essay by Robert Kagan in The Washington Post.

 

While I like to end the week with good news from Future Crunch, Kagan lays out possible political scenarios it seems important to be aware of. Kagan worked in the Reagan administration, is described as a neoconservative, is a Post columnist, and has written numerous books on politics and political history.

 

Kagan’s essay concludes:

 

"Is descent into dictatorship inevitable? No. Nothing in history is inevitable. Unforeseen events change trajectories. Readers of this essay will no doubt list all the ways in which it is arguably too pessimistic and doesn’t take sufficient account of this or that alternative possibility. Maybe, despite everything, Trump won’t win. Maybe the coin flip will come up heads and we’ll all be safe. And maybe even if he does win, he won’t do any of the things he says he’s going to do. You may be comforted by this if you choose.

 

"What is certain, however, is that the odds of the United States falling into dictatorship have grown considerably because so many of the obstacles to it have been cleared and only a few are left. If eight years ago it seemed literally inconceivable that a man like Trump could be elected, that obstacle was cleared in 2016. If it then seemed unimaginable that an American president would try to remain in office after losing an election, that obstacle was cleared in 2020. And if no one could believe that Trump, having tried and failed to invalidate the election and stop the counting of electoral college votes, would nevertheless reemerge as the unchallenged leader of the Republican Party and its nominee again in 2024, well, we are about to see that obstacle cleared as well. In just a few years, we have gone from being relatively secure in our democracy to being a few short steps, and a matter of months, away from the possibility of dictatorship.

"Are we going to do anything about it? To shift metaphors, if we thought there was a 50 percent chance of an asteroid crashing into North America a year from now, would we be content to hope that it wouldn’t? Or would we be taking every conceivable measure to try to stop it, including many things that might not work but that, given the magnitude of the crisis, must be tried anyway?

"Yes, I know that most people don’t think an asteroid is heading toward us and that’s part of the problem. But just as big a problem has been those who do see the risk but for a variety of reasons have not thought it necessary to make any sacrifices to prevent it. At each point along the way, our political leaders, and we as voters, have let opportunities to stop Trump pass on the assumption that he would eventually meet some obstacle he could not overcome. Republicans could have stopped Trump from winning the nomination in 2016, but they didn’t. The voters could have elected Hillary Clinton, but they didn’t. Republican senators could have voted to convict Trump in either of his impeachment trials, which might have made his run for president much more difficult, but they didn’t.

"Throughout these years, an understandable if fatal psychology has been at work. At each stage, stopping Trump would have required extraordinary action by certain people, whether politicians or voters or donors, actions that did not align with their immediate interests or even merely their preferences. It would have been extraordinary for all the Republicans running against Trump in 2016 to decide to give up their hopes for the presidency and unite around one of them. Instead, they behaved normally, spending their time and money attacking each other, assuming that Trump was not their most serious challenge, or that someone else would bring him down, and thereby opened a clear path for Trump’s nomination. And they have, with just a few exceptions, done the same this election cycle. It would have been extraordinary had Mitch McConnell and many other Republican senators voted to convict a president of their own party. Instead, they assumed that after Jan. 6, 2021, Trump was finished and it was therefore safe not to convict him and thus avoid becoming pariahs among the vast throng of Trump supporters. In each instance, people believed they could go on pursuing their personal interests and ambitions as usual in the confidence that somewhere down the line, someone or something else, or simply fate, would stop him. Why should they be the ones to sacrifice their careers? Given the choice between a high-risk gamble and hoping for the best, people generally hope for the best. Given the choice between doing the dirty work yourself and letting others do it, people generally prefer the latter.

"A paralyzing psychology of appeasement has also been at work. At each stage, the price of stopping Trump has risen higher and higher. In 2016, the price was forgoing a shot at the White House. Once Trump was elected, the price of opposition, or even the absence of obsequious loyalty, became the end of one’s political career, as Jeff Flake, Bob Corker, Paul D. Ryan and many others discovered. By 2020, the price had risen again. As Mitt Romney recounts in McKay Coppins’s recent biography, Republican members of Congress contemplating voting for Trump’s impeachment and conviction feared for their physical safety and that of their families. There is no reason that fear should be any less today. But wait until Trump returns to power and the price of opposing him becomes persecution, the loss of property and possibly the loss of freedom. Will those who balked at resisting Trump when the risk was merely political oblivion suddenly discover their courage when the cost might be the ruin of oneself and one’s family?

"We are closer to that point today than we have ever been, yet we continue to drift toward dictatorship, still hoping for some intervention that will allow us to escape the consequences of our collective cowardice, our complacent, willful ignorance and, above all, our lack of any deep commitment to liberal democracy. As the man said, we are going out not with a bang but a whimper.”

 

I hope you’ll read and share Kagan’s essay (the Post says a subscription won’t be required).

AP series on the tension between gun rights and other rights

"In a country shadowed by the threat of mass shootings and neighborhood violence, courts have embraced an increasingly absolute reading of the right to guns. That raises difficult questions about how to protect the full range of freedoms Americans cherish," says The Associated Press.

"With nearly 400 million guns in civilian hands [U.S. population: 336 million], the violence they enable feels to many like a threat to their right to worship in peace, go to school and be safe at home,” AP says. "To many others, an unfettered right to own and carry guns is essential to protecting those liberties."

AP examined the rising tensions between those beliefs — and the struggle for answers:

 

— Churches: There’s increasing friction between the right to worship and the right to own guns. In a recent survey of protestant pastors, 62 percent said their duties now include making plans for responding to an active shooter in their chapels and grounds.

 

— Soldiers and veterans: Every year, thousands of U.S. soldiers and veterans, many haunted by trauma sustained in the line of duty, take their own lives, the vast majority using a gun. Families and experts say it’s likely many of those men and women still would be alive if not for their access to guns.

 

— Victims of domestic abuse: The Supreme Court is preparing to step into the issue of a victim’s right to safety vs. an abuser’s right to guns, weighing whether people deemed to be a threat can be forced to relinquish their firearms if they haven't yet been convicted of a crime.

 

— Schools: Amid a record number of mass killings this year and a surge in youth deaths by firearms, how can parents and children feel safe?

 

— People who’ve lost loved ones in mass shootings: How do they reconcile the pursuit of happiness with what they’ve lost?

Good news on girls’ education, crime in Britain, microplastics in EU

Among the items in this week’s edition of Future Crunch:

 

— Globally, there are 50 million more girls in school than in 2015, UNESCO reports. Completion rates of girls have increased from 86 percent to 89 percent in primary education, from 74 percent to 79 percent in lower secondary education and 54 percent to 61 percent in upper secondary education since 2015.

 

— Data from Britain's Office for National Statistics shows that crime in England and Wales has dropped to its lowest level on record, BBC News reports.

 

— The EU is banning microplastics in products including cosmetics, detergents, glitter, fertilizers, toys, medicines, medical devices and artificial sport surfaces, reports Deutsche Welle, Germany's international broadcaster. An estimated 42,000 tons of these tiny pieces of plastic are released in products in the EU each year.

Private equity ‘plunderers’

I forgot to add a note to Friday’s blog about taking off today’s federal holiday. I don’t want to clutter up your inbox with just that, so I’ll take this opportunity to thank the reader who's altered me to two books that were published this spring:

— “These Are the Plunderers: How Private Equity Runs — and Wrecks — America,” by Gretchen Morgenson and Joshua Rosner

— “Plunder: Private Equity's Plan to Pillage America,” by Brendan Ballou

These authors are highly credentialed for this work:

Gretchen Morgenson is the senior financial reporter for NBC News’ Investigative Unit. She’s a former stockbroker-turned-reporter who previously worked for The New York Times and The Wall Street Journal and won the Pulitzer Prize in 2002 for her reporting on Wall Street. 

Joshua Rosner is managing director at the independent research consultancy Graham Fisher and Co., which advises regulators, policymakers, and institutional investors on banking and financial markets. 

Morgenson and Rosner wrote "Reckless Endangerment: How Outsized Ambition, Greed, and Corruption Led to Economic Armageddon,” about the origins of the 2007-2008 financial crisis.

Brendan Ballou is a federal prosecutor who served as Special Counsel for Private Equity in the Justice Department's Antitrust Division. He previously worked in private law practice and in the National Security Division of the Justice Department, where he advised the White House on counterterrorism and other policies.

Here is a video of Morgenson and Rosner being interviewed about their book at Washington’s Politics and Prose bookstore.

And here is a video interview of Ballou at the Harvard Book Store.

The Constitution prohibits Trump from being president again, legal scholars say

The 14th amendment "automatically excludes from future office and position of power in the United States government — and also from any equivalent office and position of power in the sovereign states and their subdivisions — any person who has taken an oath to support and defend our Constitution and thereafter rebels against that sacred charter, either through overt insurrection or by giving aid or comfort to the Constitution’s enemies,” write conservative Michael Luttig, a former federal judge on the U.S. Court of Appeals for the Fourth Circuit, and liberal Laurence Tribe, the Carl M. Loeb University Professor of Constitutional Law Emeritus at Harvard University, in The Atlantic.

"The former president’s efforts to overturn the 2020 presidential election, and the resulting attack on the U.S. Capitol, place him squarely within the ambit of the disqualification clause, and he is therefore ineligible to serve as president ever again,” they write.

They cite a forthcoming article by legal scholars William Baude and Michael Stokes Paulsen in the University of Pennsylvania Law Review that comes to the same conclusion.

Baude and Paulsen write: "The bottom line is that Donald Trump both 'engaged in' 'insurrection or rebellion' and gave 'aid or comfort' to others engaging in such conduct, within the original meaning of those terms as employed in Section Three of the Fourteenth Amendment. If the public record is accurate, the case is not even close. He is no longer eligible to the office of presidency, or any other state or federal office covered by the Constitution."

"Baude and Paulsen are two of the most prominent conservative constitutional scholars in America, and both are affiliated with the Federalist Society, making it more difficult for them to be dismissed as political partisans,” Luttig and Tribe say.

The Fourteenth Amendment was ratified in 1868 when, after losing the Civil War, southern states were sending men to Congress who had held prominent roles in the Confederacy or otherwise supported acts of rebellion or insurrection against the United States.

Baude and Paulsen make the "compelling case" that the relevance of Section 3 didn't lapse with the passing of the generation of Confederate rebels, write Luttig and Tribe.

Luttig, Tribe, Baude and Paulsen conclude that Section 3 requires no legislation, criminal conviction, or other judicial action; it is “self-executing.”

Regardless of partisan leaning or training in the law, all U.S. citizens should read and consider these simple sentences from Section 3, say Luttig and Tribe:

"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."

"The men who framed and ratified the Fourteenth Amendment entrusted to us, 'the People of the United States,' the means to vigilantly protect against those who would make a mockery of American democracy, the Constitution, the rule of law — and of America itself,” write Luttig and Tribe. "It fell to the generations that followed to enforce our hallowed Constitution and ensure that our Union endures. Today, that responsibility falls to us.”

Georgia indictment of Trump, 18 others

At the heart of the indictment filed on Monday against Trump and his allies are racketeering charges under Georgia's Racketeering Influenced and Corrupt Organizations Act.

Like the federal law on which it's based, the state RICO law originally was designed to dismantle organized crime groups, but over the years it's come to be used to prosecute other crimes, from white collar Ponzi and embezzlement schemes to public corruption cases, says The New York Times.

 

The Georgia RICO law allows prosecutors to bundle together what may seem to be unrelated crimes committed by different people if those crimes are perceived to be in support of a common objective, the Times says.

 

“It allows a prosecutor to go after the head of an organization, loosely defined, without having to prove that that head directly engaged in a conspiracy or any acts that violated state law,” says Michael Mears, a law professor at John Marshall Law School in Atlanta. “If you are a prosecutor, it’s a gold mine. If you are a defense attorney, it’s a nightmare.”

 

Prosecutors only have to show “a pattern of racketeering activity,” which means crimes that all were used to further the objectives of a corrupt enterprise. The Georgia courts have concluded that a pattern consists of at least two acts of racketeering within a four-year period in pursuit of one or more schemes that have the same or similar intent.

 

The law requires prosecutors to prove the existence of an “enterprise” and a “pattern of racketeering activity.” The enterprise doesn’t have to be a purely criminal organization. In Georgia, the law has been used to hold defendants accountable for a variety of different schemes, including attempts by candidates to seek or maintain elected office and efforts by school officials to orchestrate cheating on standardized tests.

 

The nearly 100-page indictment details dozens of acts by Trump or his allies to overturn his 2020 election defeat, reports The Associated Press. They include beseeching Georgia’s Republican secretary of state to find enough votes for him to win the battleground state; harassing a state election worker who faced false claims of fraud; and attempting to persuade Georgia lawmakers to ignore the will of voters and appoint a new slate of electoral college electors favorable to Trump. 

 

It also outlines a plot involving one of Trump's lawyers to tamper with voting machines in a rural Georgia county and steal data from a voting machine company.

 

“The indictment alleges that rather than abide by Georgia’s legal process for election challenges, the defendants engaged in a criminal racketeering enterprise to overturn Georgia’s presidential election result,” Fulton County District Attorney Fani Willis, whose office brought the case, said at a late-night news conference Monday.

 

Willis says she plans to ask for a trial date within six months and that she intends to try the defendants as a group.

 

Willis has extensive experience with bringing racketeering cases, including some outside the usual crime family realm, says the Times. She won the case involving public school officials accused of altering students’ standardized tests. Her office currently is pursuing racketeering charges against two gangs connected to the hip-hop world.

“RICO is a tool that allows a prosecutor’s office or law enforcement to tell the whole story,” Willis says.

 

Here is a look at the 19 people charged in the indictment, from AP.

 

And here are other takeaways about the indictment, also from AP.

 

Here is the text of the indictment, from Politico.

Trump's third indictment, on efforts to overturn the 2020 election

The indictment, filed by special counsel Jack Smith in Washington Tuesday, accuses the former president of three conspiracies: one to defraud the United States; a second to obstruct an official government proceeding, the certification of the Electoral College vote; and a third to deprive people of a civil right, the right to have their votes counted. Trump also is charged with a fourth count of obstructing or attempting to obstruct an official proceeding.

“Each of these conspiracies — which built on the widespread mistrust the defendant was creating through pervasive and destabilizing lies about election fraud — targeted a bedrock function of the United States federal government: the nation’s process of collecting, counting and certifying the results of the presidential election,” the indictment says.

The indictment describes how Trump and six co-conspirators used a variety of means to reverse his defeat in the election almost from the moment that voting ended, says The New York Times.

It depicts how Trump promoted false claims of fraud, tried to bend the Justice Department toward supporting those claims and oversaw a scheme to create false slates of electors pledged to him in states that actually were won by Joe Biden. And it describes how he ultimately pressured Vice President Pence to use the fake electors to subvert the certification of the election at a joint session of Congress on Jan. 6, 2021, that was cut short by the violence at the Capitol.

 

The indictment doesn't name the alleged co-conspirators, but but five of them have been identified, using the detailed descriptions provided by prosecutors, by The Washington Post, The Hill, and others. They appear to be: “co-conspirator 1” Rudy Giuliani, 2 John Eastman, 3 Sidney Powell, 4 Jeffrey Clark and 5 Kenneth Chesebro.

 

Many of the details in the charges are familiar, having appeared either in news accounts or in the work of the House select committee investigating Jan. 6. 

 

But the indictment has some new information, such as a description of Trump telling Pence, “You’re too honest,” as the vice president pushed back on Trump’s pressure to interfere in the certification of Biden’s victory, the Times reports.

 

The statement from the Trump campaign on the indictment says, in part, "The lawlessness of these persecutions of President Trump and his supporters is reminiscent of Nazi Germany in the 1930s, the former Soviet Union, and other authoritarian, dictatorial regimes. President Trump has always followed the law and the Constitution, with advice from many highly accomplished attorneys."

 

The federal judge assigned to the case, Tanya Chutkan, "has stood out as one of the toughest punishers of rioters who stormed the U.S. Capitol in an attack fueled by Trump’s baseless claims of a stolen election. She has also ruled against him before,” says The Associated Press.

 

Here is the current status of the other investigations of Trump, from AP.

 

And here is the full indictment, from Politico.

AP investigates Supreme Court ethics

On Tuesday, The Associated Press published several articles based on months examining "tens of thousands of pages of emails and other documents that reveal the extent to which public colleges and universities have seen visits by justices as opportunities to generate donations -– regularly putting justices in the room with influential donors, including some whose industries have had interests before the court.”

 

The documents also show that justices spanning the court’s ideological divide have lent the prestige of their positions to partisan activity, headlining speaking events with prominent politicians, or advanced their own personal interests, such as sales of their books, through college visits, AP says.

 

The conduct likely would be prohibited if done by lower court federal judges, AP says. 

 

"But the Supreme Court’s definition of banned fundraising is so narrow -– simply an event that raises more than it costs or where guests are asked for donations -– that it does not account for soliciting contributors later while reminding them of the special access they were afforded,” says AP.

 

The Supreme Court says in a statement: “The Court routinely asks event organizers to confirm that an event at which a Justice will speak is not a fundraiser, and it provides a definition of ‘fundraiser’ in order to avoid misunderstandings.”

“The Court then follows up with event organizers to elicit further information as appropriate,” the statement says. “The Court’s practice has been useful: Justices have declined to be featured at events even though event organizers expressly told Chambers that the events were not fundraisers, following additional inquiry by the Court that confirmed them to be fundraisers.”

 

Sen. Dick Durbin, D-Ill., chairman of the Senate Judiciary Committee, says, “If they just establish the basic standards of every other branch of government, it would give us much more confidence in their integrity.”

 

Sen. John Cornyn, R-Texas, who also serves on the Judiciary Committee, says he believes Congress should leave the ethics issue to the court and that Democrats’ pursuit of ethics reform “is part of a long-standing assault against the court that the left feels is undermining a lot of things they’ve accomplished over the years by judicial action. To me, that’s the motivating factor.”

 

Kathleen Clark, a law professor at Washington University in St. Louis and an expert in legal ethics, says the latest reporting reveals the extent to which "ethics problems at the Supreme Court is an equal opportunity scandal."

“It’s not just about Clarence Thomas and (Samuel) Alito,” Clark says, referring to earlier media reporting about the two conservative justices. “It’s an institutional rather than individual problem.”

 

The articles are:

 

"Book sales, a lure for money and more takeaways from the AP investigation into Supreme Court ethics"

"Supreme Court justices and donors mingle at campus visits. These documents show the ethical dilemmas"

"Supreme Court Justice Sotomayor’s staff prodded colleges and libraries to buy her books"

"Justices teach when the Supreme Court isn’t in session. It can double as an all-expenses-paid trip"

"Inside the AP’s investigation into the ethics practices of the Supreme Court justices"

Takeaways from the Supreme Court’s 2022-2023 term

The three 6-3 rulings at the end of last week — rejecting affirmative action in college admissions, favoring the speech of the religious over anti-discrimination laws and torpedoing President Biden’s plan to forgive student loan debt — showed the ongoing dominance of the court’s conservative supermajority, says an analysis by Robert Barnes, a longtime reporter on the court for The Washington Post.

 

But they were among only five cases — there were 14 last term — in which those ideological lines held.

 

Over the course of the term, Clarence Thomas and Samuel Alito, the most conservative justices, dissented more often from the court’s decisions than its most liberal members, Sonia Sotomayor and Ketanji Brown Jackson, according to the website Empirical Scotus.

 

Completing his 18th term, Chief Justice John Roberts was in the majority in every one of the court’s most important cases, and he chose to write the opinions in four of them. 

 

"It was a remarkable turnaround from last year, when he was unable to persuade his conservative colleagues not to overturn Roe v. Wade, the most defining decision of the court’s recent history,” says Barnes. 

 

The issues the court confronts change every year, and the ones tackled this term aligned with Roberts’ long-held views, Barnes says. "He has never voted in favor of an affirmative action program; his decision striking the admissions programs at his alma mater, Harvard University, and the University of North Carolina is a continuation of the aversion to race-based plans he expressed in 2007, in cases involving public schools in Seattle and Louisville.”

 

"Roberts’ rejection of the Biden administration’s claim of power to forgive student loan debt for more than 40 million Americans was an echo of his ruling last term that the Environmental Protection Agency lacked the authority it had staked out over climate change. His vote in 303 Creative v. Colorado, holding that a Christian web designer has a First Amendment right to withhold her services from same-sex weddings, was no surprise either, because of past rulings on religious rights.”

 

But Roberts wrote the decisions in both voting cases that were praised by liberals and Democrats, one on Alabama redistricting and the other rejecting the independent state legislature theory.

 

The American Civil Liberties Union was on the losing side in 13 of the 18 cases in which it filed briefs last year but had a winning 11-7 record this term.

 

“What seems clear is that everyone overread last term, and thought everything was up for grabs,” says David Cole, ACLU legal director. “The right advanced extreme arguments that the court rejected,” especially in the Alabama and independent state legislature cases, he says.

 

“Many saw as the emergence of a new center of the court, composed of Roberts and Justices Brett Kavanaugh and Amy Coney Barrett … all reliable conservatives,” Barnes says.

 

The justices restored, for now, the status quo on the availability of medication abortions, declined a request to reinstate West Virginia’s ban on transgender athletes in girls’ sports and put aside an attempt to block New York’s new restrictions on concealed firearms. In all three rulings, only Thomas and Alito noted concern.

 

“Justices Kavanaugh, Barrett, and even [Neil] Gorsuch at times have rejected the more conservative views of Justices Thomas and Alito in many of the term’s most high profile cases,” says Harvard law professor Richard Lazarus.

 

Here is a review of the court’s term by The Associated Press’ longtime reporter on the court, Mark Sherman.

 

And here is the analysis of NPR’s longtimer, Nina Totenberg.

Supreme Court rejects increased authority of state legislatures over elections

The court rejected on Tuesday a legal theory that would have "radically reshaped how federal elections are conducted by giving state legislatures largely unchecked power to set rules for federal elections and to draw congressional maps warped by partisan gerrymandering,” says The New York Times.

 

The “independent state legislature” theory is based on a reading of the Constitution’s Elections Clause, which says, “The times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.”

 

Proponents of the strongest reading of the theory say this means that no other organs of state government, including courts, can alter a legislature’s actions on federal elections.

 

The vote was 6-3, with Chief Justice John Roberts writing the majority opinion. The Constitution “does not exempt state legislatures from the ordinary constraints imposed by state law,” he wrote.

 

The court said state courts nevertheless must act within “ordinary bounds” when reviewing laws governing federal elections. And that gives another set of tools for those who lose election lawsuits in state courts to try to persuade federal judges to overturn those rulings.

 

“We beat back the most serious legal threat our democracy has ever faced today,” said Kathay Feng of Common Cause, whose suit challenging congressional districts drawn by North Carolina’s Republican-controlled legislature triggered the case.

 

"Today the Supreme Court rejected the fringe independent state legislature theory that threatened to upend our democracy and dismantle our system of checks and balances," former President Obama tweeted.