Opinion Justice delayed is justice denied
Answer: Many legal experts have already debunked the notion of a self-pardon. However, Trump likely would not bother; he would just order the Justice Department to drop its cases. (That would still leave state court cases, although those would likely be held in abeyance while he was in office.) With so may cases ongoing, getting the media to focus on the potential abuse of power is nearly impossible. That said, you are right: Trump is running on the stunning assertion he can never be held accountable.
A reader asks: Do you have “four-times-indicted former president” as a keyboard shortcut? Brava, if you do.
Answer: I don’t, but I should! Thanks for noticing that I consistently use that formulation. No voter should forget that the near-certain GOP nominee is accused of multiple, serious felonies.
A reader asks: The Supreme Court has erased the first half of the Second Amendment, the establishment clause of the First Amendment and now Section 3 of the 14th Amendment. Do you think they just redact their copies with black Sharpies or cut out the bits they don’t want as though a right-wing moth attacked the Constitution?
Answer: Perhaps they just added something: “But in any event right-wing ideologues win.”
A reader asks: Could special counsel Jack Smith file a motion to the Supreme Court to allow preparation for Trump’s trial to proceed while the justices deliberate the immunity question?
Answer: The same court that took nearly two weeks to grant review of the immunity issue is the last place to find relief. Smith, unfortunately, might have waived that issue when the case was first stayed.
A reader asks: The Supreme Court just gave Trump the delay he’s wanted to prevent the Jan. 6, 2021, trial until after the election. Is there even a small particle of legitimacy left in the Supreme Court?
Answer: Given Justice Clarence Thomas’s refusal to recuse in cases involving an insurrection in which his wife apparently participated; his and Justice Samuel A. Alito Jr.’s disclosure failures; the court’s refusal to enact an ethics code with teeth (Thomas therefore sits on insurrection cases); the majority’s evisceration of decades of precedent; and several justices’ highly partisan public appearances, the answer is no. If President Biden is reelected with Democratic majorities in both chambers of Congress, he must pursue serious court reform. A court that acts like a partisan legislature should be treated as one — with term limits and strict ethics rules.
A reader asks: Hi, Jennifer. Thanks for considering my question. I wouldn’t blame you if you decline to answer. We know that if Trump runs and loses, he will crow that he was cheated. Given that his minions contain many who threaten civil war, what do you think the chances of violence would be, and how would the government handle that violence? Trump scares me.
Answer: You raise a critical question. Every American should be nervous. Trump has started advancing another claim of “fraud,” lying that Democrats are registering illegal immigrants. We should expect a Jan. 6 rerun if he loses. (It is the best reason Republicans should have excluded him from the primaries.) Section 3 of the 14th Amendment was designed to prevent an insurrectionist from reappearing on the ballot to try again. Though the Supreme Court left Trump on the ballot, voters have every reason to exclude him from consideration. They watched him propagate the “big lie” and lead an insurrection. Law enforcement must prepare to defend the election results.
A reader asks: Do Republican women not realize Trump is a rapist? Swooning like cheerleaders is baffling to me.
Answer: Some cocooned in right-wing media remain ignorant. Others marinating in disinformation insist the trial was “rigged.” And, shockingly, some are so cynical and blind to moral distinctions they insist: “Well, Biden is still worse.” Those actually ignorant about the verdict might still be reachable. Echoing Judge Lewis A. Kaplan’s holding that Trump’s actions can be described as “rape,” Biden and his supporters must remind voters: Civil courts found he raped a woman and lied about it — and separately determined he fraudulently inflated his holdings.
Further thoughts
Most readers’ questions this week concerned the Supreme Court’s ruling that made a Jan. 6 trial and verdict before the election unlikely. This concern goes to the heart of the issue: Do we adhere to the principle that no one is above the law?
Keep in mind two points. First, a New York jury soon will hear and reach a verdict in the serious election deception case. Trump allegedly falsified business records to conceal other crimes to gain office by deception. If convicted, incarceration (after appeals) is possible. Second, ultimately, voters must defend democracy. Only a decisive loss in a national election will foreclose Trump’s return to power. Trump then will have to face the full force of our criminal justice system.
Lastly, the Supreme Court’s ruling refusing to comply with the letter of Section 3 of the 14th Amendment (i.e., leaving Trump on the ballot) nevertheless contains two red flags for Trump. First, the court could have but declined to contradict the Colorado Supreme Court, Maine secretary of state or Jan. 6 House select committee findings that Trump instigated an insurrection. There are limits — whew! — as to how far this court will go in Trump’s defense. Second, Justice Amy Coney Barrett joined with the “liberal” justices finding the majority went too far in requiring Congress to act to effectuate disqualification. That suggests she might be less inclined to side with them in the immunity case.
Journalism 101
The Wall Street Journal proclaimed: “Despite all the uncertainty in Donald Trump’s Georgia election-interference case, several legal experts said one thing has become clear: Fani Willis’s case has been damaged.” A single “expert” — with no apparent expertise in ethics or Georgia law — was cited. The premise is purely speculative. Damaged how? (The piece acknowledged that she is unlikely to be removed.) Citing “Republican” outrage, the report ignored virulent anger among women, especially women of color.
The piece further postulated that “the ethics scandal … has blunted momentum” and “likely undermined her ability to obtain guilty pleas from the remaining defendants.” Nonsense. If the recusal motion is rejected, the trial schedule proceeds. Her “credibility” won’t be an issue in the trial. The jury will consider the facts.
If this were an opinion piece, it would be suspect; that it appears in the “news” section stuns me.
Legal highlight
Texas Republicans insist their state can run its own immigration plan and defy direction from the federal government. More extreme MAGA activists say Texas should “secede.” No fewer than three lawsuits are pending at different federal court levels in which Texas asserts its power to run immigration policy.
In one case, U.S. District Court Judge David A. Ezra in the Western District of Texas enjoined a state law, S.B. 4, that devised Texas’s “own immigration entry and re-entry crimes” and authorized, among other things, state police to arrest noncitizens, state prosecutors to bring charges in state courts and state judges to order deportations. Under this law, the feds have “no role in, and no control over, Texas’s scheme.”
Ezra struck down S.B. 4 under the supremacy clause:
It is not a plausible interpretation that the Framers, in carefully specifying Congress’s exclusive duty to wage war and control immigration, intended to grant states the unilateral power to disrupt that balance whenever they disagreed with federal immigration policy. To borrow a phrase from statutory construction, the Framers did not hide an elephant in a mousehole …Texas is not likely to succeed on the merits. Its arguments rest upon a narrow and untenable reading of Arizona and the many immigration preemption cases that preceded it. SB 4 intrudes onto especially dominant federal interests, such as the removal of noncitizens, and conflicts with federal law by disallowing consideration of pending asylum or withholding determinations. Texas’s “actually invaded” defense, meanwhile, asserts a novel reading of “invasion” never once affirmed by any federal court (and, indeed, unanimously rejected by three circuit courts). Texas is unlikely to succeed on the merits.
The refresher on the primacy of federal law is welcome — as is the judge’s evisceration of Texas Republicans’ specious arguments that they face an “invasion” — and that Texas has engaged in an act of “war” against immigrants. Texas will appeal the case.
Next week, I’ll have my online chat, so please submit your questions. Questions submitted after March 13 will go to my next mailbag newsletter on March 20.
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