THE DEFINITION OF SEDITION

Question of the day: How much more flagrant do the actions of Donald Trump and his entourage have to become before there is a general admission on the part of Americans, and especially among all of the country’s remaining small-d democrats on either side of the aisle in Congress (not just Mitt Romney), that the forty-fifth president is, and always has been, a would-be autocrat? And that it is only thanks to the continued institutional integrity of the US Supreme Court, of the federal and state judicial systems, of state election boards, and of the Armed Forces of the United States that his presidency has not spelled the end of America’s two-hundred-fifty-year experiment in democracy.

We now know—his refusal to accept the legitimate outcome of national elections confirms it—that Donald Trump wasn’t kidding, as his apologists always tried to claim, when he expressed his admiration for dictators from Vladimir Putin to Kim Jong-un, or when he heralded Chinese strongman Xi Jinping’s appointment as president-for-life by saying, “Maybe we’ll have to give that a shot here someday,” or when he was campaigning for a chance at a second term and quipped that he was already thinking about a third. Donald Trump is a would-be autocrat who unrealistically (surrealistically) continues to refuse to believe that the people of the United States have refused him four more years after his disastrous first four..

And before I take up the subject of Team Trump’s latest anti-American machinations, I think it would be relevant to define the word SEDITION: Overt conduct, such as speech and organization, that tends toward rebellion against the established order. Sedition often includes subversion of a constitution and incitement of discontent toward, or rebellion against, established authority.

Please bear this definition in mind.

This past weekend there were credible reports from several major mainstream investigative news sources, who quoted executive staff members, regarding a meeting at the White House in which the outgoing (and trying desperately not to) forty-fifth president of the United States got together with at least two high-profile conspiracy theorists who are advocating “limited martial law” as a means of “overturning November’s election results”. One of these subversives—let’s be honest, there’s no other name for them—to whom Trump gave audience is convicted (and presidentially pardoned) felon General Michael Flynn, who, having gotten his get-out-of-jail-free card from the president, is now bent on launching a coup to show his gratitude.  The other is lawyer and conspiracy theorist Sidney Powell, who basically just seems to be bat-shit crazy and thinks that former Venezuelan dictator Hugo Chávez—who has been dead for seven years—somehow reached out from the grave to mess with American voting machines in the last election. Her delusions are so extreme that even the president’s zany attorney and former New York Mayor Rudy Giuliani side-lined her from the legal team that has been leading Trump’s baseless and futile court efforts to overturn the election results. She too is espousing the martial law idea.

Flynn explained his theory further this weekend, saying that martial law was nothing new, that it had been declared dozens of times in US history. He’s right. But it has always, with the exception of the Civil War, been declared on a limited basis under highly unusual and dangerous circumstances, such as not only the Civil War, but also the Great Chicago Fire, earthquakes and other grave natural emergencies, rampant rioting and looting, uncontrollable racial violence, briefly during events surrounding Nine-Eleven, etc. It has never been declared because a sitting president and his party couldn’t deal emotionally with losing an election. In the federal legal code, martial law has been limited by several court decisions handed down between the Civil War and World War II, including the 1878 Posse Comitatus Act that prohibits involvement of the military in domestic law, except when approved by Congress.

Michael Flynn’s suggestion, then, is tantamount to sedition, since it calls for inappropriate use of presidential powers to promote insurrection against the established order. And it should be considered a violation of his oath to defend the Constitution, as a retired general officer in the US Army—a rank which, somehow, despite his disgraceful performance to date and his conviction for felonious lying to the federal authorities—he has managed to retain.

Powell, for her part, continues to maintain her groundless accusations about rigged voting machines in swing states (apparently everything worked just fine in the states where Trump won)—despite assurances by election officials, governors and attorneys general from both parties that results have been checked and double-checked—and in the case of Georgia, a GOP-governed state, triple-checked—and that there are no widespread, systematic or systemic irregularities to report. This has been reconfirmed in at least sixty court cases, many brought in swing states by the legal team of which Powell formed part, and all brought by Trump-or-die supporters at the president’s behest, as well as two cases taken to and flat-out rejected by the Supreme Court of the United States. Still, for no other reason than her own gut-lunacy Powell is pushing for the president to take Flynn up on his martial law proposal so that she can get the voting machines confiscated and have a look at them—to see if the ghost of Chávez is haunting them, perhaps?

What both Flynn and Powell—and indeed the president—are saying is, “You people in the swing states that voted for Biden didn’t vote right. So we want to take over your states by military force and oblige you to vote again...and again...and again, until Trump wins. Why? Because we don’t like Biden and want Trump to keep on being president. Your choice and US democracy be damned! And the majority of the GOP’s members are either keeping their mouths shut in the face of this inexcusably seditious behavior or they are actively participating in it.

So Flynn and Powell are not the only two conspiracy theorists—if you don’t count the president—seeking to use the power of the presidency to overturn the results of a free and fair election. Not by a longshot. Another of the more prominent ones at a local level who has nevertheless gone viral nationally, is Amanda Chase. Chase is a member of the Virginia Senate who aspires to becoming governor of the state.

But that’s not what Chase is best known for—or perhaps “notorious” would be a more appropriate term. Two years ago, she walked into the Virginia Senate, open-packing a loaded .38 revolver. And she was wearing it on her hip while presenting draft legislation to a State Senate committee. Asked why she was carrying a loaded gun to the Legislature, she said it was to act as “a deterrent for over-exuberant folks.”

Chase has also repeatedly posed for photographs with political militant and gunman Antonio Lamotta, who is a promoter of the conspiracy-theory crazies of QAnon. It should be noted that Lamotta, who Amanda Chase seems to admire and want to emulate, was arrested in Philadelphia and charged with a third-degree felony last month, shortly after the general election, for being caught carrying several pistols, an AR-15 assault rifle, and over 150 rounds of ammunition without a valid Pennsylvania firearms permit.

Recently, Chase herself was seen toting an AR-15 at port arms while at a far-right, white supremacist, political rally where she was surrounded by Boogaloo Boys. The Boogaloo Boys, as you may remember, emerged last year from the murky undergrowth of extremist fringe sociopaths that the Trump era has spawned, or at least encouraged. They are sometimes referred to as a militia (the National Guard is a militia, this is just another tribe of would-be felons), but are actually a loosely organized far-right, anti-government, and extremist political group, better described as domestic terrorists.

Bearing her past behavior in mind, it should come as no surprise that Chase last week also called on Trump to impose martial law in her state, making the patently false claim that there was “extensive fraud here in Virginia” and that Democrats had “cheated to win.” Her statement drew immediate condemnation from Republican lawmakers and former lawmakers including Denver Riggleman, Barbara Comstock and David Ramadan. Virginia Republican gubernatorial candidate Kirk Cox called her statements “absurd and dangerous”, and Virginia Democratic Congresswoman Jennifer Wexton said Chase was “unhinged”.

Sidney Powell has been spreading her ridiculous fantasies to anyone who wants to hear them in Trumpland, apparently having taken a real shine to grabbing a mic and standing up in front of a (maskless, non-socially-distanced) crowd and, in doing so, actually manages to make Rudy Giuliani look marginally sane. Flynn, for his part, has been seen protesting outside of the Supreme Court with QAnon members and other extremist lunatics, as if their un-righteous outrage could change the views of the highest court in the land, whose decisions are founded on the rule of law and, hence, final, since there is no higher court to appeal to.

Meanwhile, in Congress there’s a covey of coup-mongers who say they may try and throw a monkey wrench into the transition when the
Legislature convenes on January 6^th, by seeking a vote on whether to accept or reject the Electoral College’s final count. What do they hope to accomplish when Biden hammered Trump by a margin of seventy-four electors? Well, a good “what’s-in-it-for-me” indicator came from former jock and college football coach, now-Senator Tommy Tuberville, who must be missing his former days of gladiator glory in the stadium and is looking for a new Caesar to impress, since, according to Trump, Tommy Tuberville credited the president with making him “the most popular politician in the United States.” (Careful there, Tommy, The Don doesn’t like being outshined). Which is why Tuberville now appears willing to call for a vote on the EC count, and, in doing so, go against Senate Majority Leader Mitch McConnell who has way-belatedly accepted President-elect Biden’s legitimate win and has asked his colleagues to help move the country smoothly to the inauguration.

Everybody wants something from Trump in return for their futile attempts to overturn the elections. But mostly they want to avoid being pilloried by him on Twitter, or having him give them a thumbs-down so that his base feeds them to the lions at the polls—this last being the case of David Perdue and Kelly Loeffler in the run-offs that they must still face in Georgia.

In the lower house, it’s Republican Representative Mo Brooks who is leading a plot to reject Biden's Electoral College victory. The congressman has said he wants to reject the electoral votes certified by states such as Georgia and Pennsylvania that had what he calls “flawed election systems” a notion already quashed by the Supreme Court and dozens of lower courts.

Republican Representative Riggleman, whom I mentioned earlier, had pretty much the same appraisal of all of this as I did in describing Sidney Powell, saying that “the technical term for it is bat-shit crazy.” Trump’s own former National Security Advisor John Bolton—who is historically and famously known as a right-wing hawk but who, in the era of Trump sounds moderate (or at least sane) by comparison—termed the call for martial law by Flynn and those including the president who have actually listened to him instead of laughing him out of the room, “appalling” and “unprecedented”, as was the president’s continued refusal to accept the reality of his loss.

The most outspoken GOP member by far has been Republican Senator Mitt Romney who called these latest flirtations with authoritarianism “really sad” and “embarrassing”. Romney said that just when the president could have been taking one last big victory lap for the speed with which the country had come up with two vaccines with which to fight the COVID-19 epidemic, he is instead hunkered down denying the results of a free and fair election. Said Romney, “He could be championing this story (about the vaccines) but instead he’s leaving Washington with conspiracy theories and things so nutty and loopy that people are shaking their heads, wondering what in the world has gotten into this man. I think that is unfortunate because he has more accomplishments than this last chapter suggests he is going to be known for.”

And Romney is right. Rather than being known for the success of Warp Speed, Trump will go down in history as the president who encouraged the people to deny the science, a denial which has been the direct cause for hundreds of thousands of preventable deaths. And given the course so far of his last seventy days in office, he will also be known as the first leader in US history to abuse presidential power and actively seek to overthrow democracy and disenfranchise the American voter. 

Try as I might to keep my sense of humor and make light of the insanity in the grip of which the United States continues to find itself, despite the fact that the election is over, certified state by state and re-certified by the overwhelming results of the Electoral College vote, the continued denial in which the president and his cohorts are submersed is worthy of genuine concern. Particularly since, having run out of legitimate legal options through which to try and build a case for which he has absolutely no corroborating evidence, he has now surrounded himself with conspiracy theorists, coup-mongers, violent fringe groups and political opportunists who are seeking to ride on his coattails and, no matter what the cost to the country, to grab some of the dissipating populist power than he once clearly commanded.

What we should pay attention to here is the euphemistic language being used to describe what we are witnessing. What Trump and his now unadulterated far-right fringe entourage are trying to do can no longer be called “seeking to overturn the election results.” After a legitimate, free, fair and duly certified elections and with Inauguration Day less than a month off, the current machinations in the Trump camp are a blatant attempt to overthrow the established order in the United States of America. If the same thing were happening in any African or Latin American nation, no one would think twice about calling it what it is: an attempted overthrow, in short, an attempted coup d’état.

Many people are thinking that it doesn’t really matter. That it will soon be over. That Trump is history. That a new dawn is coming in which everyone will come to his or her senses and say, we have to start mending our fences and healing the divisions. We have to make amends, realize that what has happened here is grave and that it must be avoided in the future. We have to start working together across the aisle and throughout the community for the good of America.

But a great deal has been broken over the course of the past four years—and of the four years before that. And once the ideals and principles of a democracy have been shattered, it is a monumental task to put them back together again, a task that requires selfless and eager cooperation. In a United States in which people no longer see each other as Americans first and foremost but where they tend to divide sharply between right and left, it’s hard to see that happening any time soon. But hopefully it eventually will.

In the end, this will either be seen merely as one of the darkest chapters in the political history of the United States that is now, thankfully, coming to an end, or it will be seen as when “the new normal” began and political hatred and in-fighting destroyed a two and a half-century-old democracy, the greatest the world had ever known.          

 

OCD...

 

REALITY

 

US President Donald Trump's own Department of Homeland Security has just rejected his claims of a rigged election. In a public statement, the DHS unequivocally described to what degree the 2020 presidential election was valid, fair and utterly transparent, stating: "The November 3rd election was the most secure in American history.”

Maybe it's time for the GOP leadership to get their heads out of their...valises, and admit the same for the sake of democracy and the country. With the president having gone underground, in a fog of self-pity and bile, the rest of the political establishment, at least, should put on their big-boy pants and join the real world, for the sake of the Nation.

Joe Biden is the president-elect. Get over it and get to work, because the president is missing in action and conspicuous by his absence in the midst of the worst pandemic health crisis in living memory.

A LEGACY DISREGARDED

Ruth Bader Ginsburg left us one of the greatest legacies in the history of the US Supreme Court. It could be best described as a continuous and ardent defense of individual rights in the face of state overreach and abuse of power. Her last request was that, in a controversial election year and down to the wire before voting day, the voice of the people should be heard before someone was chosen to attempt to take her place. That request was not only not heeded, but was demonstratively and almost viciously disregarded. Justice Ginsburg deserved better.

Justice Ruth Bader Ginsburg

The death of this iconic American jurist was all but lost in a chaotic  pre-electoral news cycle fraught with extenuating circumstances—the worst pandemic in a hundred years that the administration has chosen to ignore in hopes that it will simply go away, the most divisive political climate in recent memory and perhaps since the Civil War, widespread demonstrations to demand respect for human and civil rights around which extreme elements from the outer fringes of both left and right have sought to stoke violence, and a sitting president who has incited violence himself while suggesting that he could very well not accept the outcome of the current democratic process and, if he loses next week’s election, could presumably have to be removed from office by force.

Nor did the administration and the Republican-led Senate (read: Majority Leader Mitch McConnell) give us time to mourn and honor Justice Ginsburg as she deserved. Instead, they made it immediately clear that they planned to pick an extreme conservative out of a hat—women’s names only, to try and appease female voters whom the current president is shedding like coronavirus at a super-spreader event—and ramrod her appointment through the Senate in the nick of time before the First Tuesday in November. And that is precisely what they have done.

It would be unfair to either woman to say that Amy Coney Barrett, who this week initiates her tenure as a new associate justice of the US Supreme Court, “replaces” Justice Ginsburg. She couldn’t, because Ginsburg’s shoes are unfillable—at least by any of the candidates that the President considered. And, besides, that’s not what Coney Barrett is there to do. No matter what sort of justice she proves to be in what will very likely be her decades in the post, for the moment, Justice Barrett is a ringer, a linchpin nomination designed to pack the Court with conservatives so as to affect US law for generations to come, even though there is every indication that the majority of Americans are currently of a much more liberal political bent. There is reason to suggest that she has been chosen not because of any judiciously even-handed interpretation of the law that she may have, or claim to have, but, indeed, because of her extremely conservative views, as they emerge from her past writing, speeches, decisions, associations and statements, no matter how carefully she avoided reflecting those views during Senate hearing questioning by opposition lawmakers.

Amy Coney Barrett at the White House

Seeking to strike any comparison between Coney Barrett and Justice Ruth Bader Ginsburg would be almost cruel. Next to RBG’s extraordinary accomplishments by the time she first came to the Supreme Court, Amy Coney Barrett is a relative novice. But taken beyond the boundaries of her ostensibly being a “replacement” for Ginsburg, she indeed has a sound (though not astounding) legal curriculum vitae.

After graduation from an all-girls Catholic high school in New Orleans, where she was class vice-president, Coney Barrett attended Rhodes College in Memphis, where she majored in English literature and minored in French, graduating magna cum laude in 1994. She was awarded a full tuition scholarship to Notre Dame Law, where, among other honors, she served as executive editor of the Notre Dame Law Review. She graduated at the top of her class earning a juris doctor suma cum laude degree in 1997. That same year she began clerking for DC District US Court of Appeals Judge Laurence Silberman. The following year, she went to work as a clerk for US Supreme Court Justice Antonin Scalia and remained with him throughout 1998 and 1999. For the next three years, she worked for a boutique law firm in Washington that later merged with a bigger law firm in Texas. Following the merger, she participated on the research team for a lawsuit entitled Bush v Gore, emerging from controversy over the 2000 presidential election results. Her firm represented George W. Bush. The rest of her credits are academic and include teaching or acting as a research fellow at George Washington University, University of Virginia Law, and at her alma mater, Notre Dame, imparting subjects related to the federal courts and constitutional law and researching and writing on topics related to constitutional law, originalism, statutory interpretation, and stare decisis (litigation according to precedent) for the Columbia, Cornell, University of Virginia, Texas and Notre Dame Law Reviews, among other publications.  

In 2010, Supreme Court Chief Justice John Roberts appointed Coney Barrett to serve as a member of the Advisory Committee for the Federal Rules of Appellate Procedure. It wasn’t until 2017, that she was named by the Trump administration to serve as a federal judge for the US Seventh District Court of Appeals, thus providing her with less than three years’ experience on the federal bench. Her ultimate Senate confirmation in that post was contentious, since Democrats saw her as a political appointee chosen more for her staunch anti-abortion stance and her dubious stated views on whether Rowe v Wade should be overturned than because of her general record as an attorney and educator. She is also believed to favor overturning the Affordable Care Act and to hold staunchly rightwing views on immigration. Nor did she prove herself capable, during her Supreme Court nomination hearing, of clearly answering what her response would be if President Trump were to try and make good on his threat to refuse to give up the White House if he is defeated in next week’s election—an act that, if carried out, would be clearly unconstitutional, if not seditious. These topics and her relative inexperience were some of the same issues that came up regarding the eleventh-hour GOP rush to place her on the Supreme Court while they still hold a Senate majority in case they are voted out of office, which, according to recent polls, appears not unlikely.

Ruth Bader Ginsberg, meanwhile, has been described in liberal legal circles as, quite simply, “the most important woman lawyer in the history of the Republic,” and one of the most famous and popular justices in the history of the Supreme Court. The “notorious RBG”, as she was fondly known, has quite literally become a pop icon, something few if any other Supreme Court justices in history can boast. And, by contrast and comparison, Amy Coney Barrett has become an unwitting catalyst for the posthumous exponential growth of Ginsburg’s popularity, particularly among American women. In her place at the other end of the spectrum, Coney Barrett is cast by liberals as the GOP’s “handmaid”—a reference to Margaret Atwood’s political fiction, The Handmaid’s Tale, in which, from one day to another, an all-pervasive quasi-evangelical state policy is violently imposed to disempower women.

By the time RBG was appointed to the Supreme Court by the Clinton administration in 1993, she had already served as a federal judge on the Second Circuit Court of Appeals for the District of Columbia for nearly thirteen years, having been nominated for that post by the Carter administration in 1980. She was known as a prudent, judicious and moderate jurist who was adept at seeking points of agreement with her conservative colleagues—including her later fellow Supreme Court Justice Antonin Scalia—and reaching a consensus for the appellate court’s final decisions.

Daughter of a Ukrainian-born father and a first-generation Polish-American mother, RBG attended the same public high school in Flatbush (Brooklyn), New York, as Senators Bernie Sanders, Chuck Schumer and Norm Coleman. She lost her mother, who had inspired and encouraged her to be all she could be, to cancer the day before her graduation. Despite this blow, by age seventeen, she not only had her high school diploma but was also enrolled in the academically prestigious Cornell University, majoring in Government, and graduating first in her class in 1954.

She married her husband, tax attorney Martin Ginsburg, right out of college at twenty-one, and accompanied him to Ft. Sill, Oklahoma, where he was assigned for active duty as an ROTC Army Reserve officer. There, she landed a job working for the Social Security administration for two years, but was demoted in her second year after she became pregnant. This early incident was one of the personal injustices that she suffered that would later affect her interpretation of sexual discrimination under the law.

Another was when she enrolled and was accepted at Harvard University’s Law School. She was one of only nine women out of a class of several hundred. Early in the year, the dean of Harvard Law invited all nine women to his home for dinner and, once they were seated at his table, asked each to explain why she had decided to come to Harvard Law to take a place that could have been filled by a man.

RBG later transferred to Columbia Law in New York City, from which she graduated in 1959, tying for top of her class. While studying, she became the first woman in history to be on the staff of both the Harvard Law Review and the Columbia Law Review. In 1960, with the recommendation of the dean of Harvard Law, she sought a position as a clerk for Supreme Court Justice Felix Frankfurter, but was turned down strictly based on her sex. She later sought a similar position, with the recommendation of Columbia Law professor Gerald Gunther, on the staff of New York Southern District Federal Court Judge Edmund Palmieri, but was also at first rejected because of her gender. But Gunther doubled down, telling Palmieri that he would never again recommend a Columbia Law graduate to the Judge if he failed to hire Ginsburg. She then got the job, and held it for two years. Ironically, young legal professionals like Amy Coney Barrett who never have had to smash through the gender barrier to gain access to jobs in the federal legal system owe an enormous debt to Ruth Bader Ginsburg, parts of whose legacy the GOP is now seeking to undo.

From 1961 to 1963, RBG worked on an international legal procedure project sponsored by Columbia Law, for which she learned Swedish and carried out extensive research at Sweden’s Lund University, the result of which was a book that she co-authored with Swedish legal expert Anders Bruzelius—a member of a famous family of Scandinavian jurists.  It was while in Sweden that she further developed her stance on democracy and women, noting that anywhere from twenty to twenty-four percent of all Swedish law students were women, while in the US, with a few brilliant exceptions like herself, the legal profession tended to be a closed boys’ club. She also took note of the fact that one of the Swedish judges whom she interviewed for her project was eight months pregnant and still on the job. She came back from Sweden convinced that a more equal and democratic world for women than the one in the US was possible.         

When Ginsburg acquired her first teaching post at Rutgers Law in 1963, she was one of only a score of female law professors in the entire country. She taught civil procedure at Rutgers until 1972. While teaching there, RBG co-founded the Women’s Rights Law Reporter. It was the first US legal journal whose entire focus was set on women’s rights.

RBG in the '70s

In 1972, she became the first tenured woman professor ever to teach at Columbia Law. She remained at Columbia until 1980. While there, she became the co-author for the law school’s first sex discrimination casebook. Also during that time, she put in a year as a research fellow at Stanford University’s Center for Advanced Studies in Behavioral Sciences.

Also en 1972, RBG became a co-founder of the American Civil Liberties Union’s Women’s Rights Project. The following year, she became general counsel for that project. As such, she was a front-line participant in some three hundred general discrimination cases that the ACLU filed by the end of the next year. As the project’s general counsel, it was her job to personally argue six discrimination cases that the US Supreme Court heard between 1973 and 1976. She won favorable Supreme Court decisions five out of those six times.

Constitutional scholars tend to agree that Ginsburg chose her battles carefully, going after sex discrimination one precedent at a time rather than battling the Court for a blanket ban on all gender discrimination, which, in those times, she was unlikely to achieve. By concentrating on specific statutes throughout the country, she was creating the building blocks for a broader assault on gender inequality. Nor did she limit her plaintiffs to women, since by adding the cases of some men, she was implicitly proving that sex discrimination affected everyone, not just women. Examples included cases in which men, on the basis of gender, were denied benefits that women received—e.g., a widowed man who was denied Social Security benefits paid to widows caring for small children but not to widowers in the same situation, and a male caregiver denied a tax deduction provided to female caregivers.

Additionally, she couched the language of her legal briefs, preferring the term "gender" to the trigger-word "sex", which, she felt, might distract male judges hearing the cases. And it is important to note that her equality advocacy work during this time played a direct and significant role in ending gender discrimination in no few fields of law, as well as in tapping into the Fourteenth Amendment granting equal rights protection to African Americans, so as to seek its application to gender discrimination as well. Indeed, she drafted the brief for the historic Reed v Reed case argued before the Supreme Court, basing it on the applicability of the Equal Protection Clause of the Fourteenth Amendment to women, as well as to blacks.

Legal scholars and civil rights advocates tend to agree that RBG’s work at the ACLU should be credited with making major legal inroads for women on the basis of the Fourteenth Amendment to the US Constitution and that her repeated victories largely discouraged legislators from continuing to treat women differently than men under the law. This has prompted many, including her conservative friend and fellow justice, Antonin Scalia, to compare her step by step, precedent by precedent building of women’s constitutional equality with how the country’s first black Supreme Court justice, Thurgood Marshall, built the case of African American equality. Said Scalia, "She became the leading (and very successful) litigator on behalf of women's rights—the Thurgood Marshall of that cause, so to speak." Linda Hirschman, an attorney/writer and the author of Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World, calls Ginsburg “quite simply the most important woman lawyer in the history of the Republic.”

And she, in essence, maintained that incisive attorney’s view in her thirteen years as a federal judge and her nearly three decades as a Supreme Court Justice. Instead of switching hats and distancing herself from the lawyerly view of her clients’ needs and rights, she merely switched clients, and her new client was “we the people.” This was probably because her interpretations were based more on what was legitimate than what was “legal” and she wasn’t afraid to shake discriminatory laws to their illegitimately vested foundations and seek to force them to conform to the true spirit and letter of the Constitution.

RBG with Sandra Day O'Connor

Outstanding lawyer, researcher, teacher and judge, she was, without a doubt, a remarkable jurist. But she was also, first and foremost, a small-d democrat, who, nevertheless, took a judicious view of democracy and realized that it was, as the old saying goes, “the worst form of government, except all the others.” As such, she knew its weaknesses: namely, that if minority rights weren’t protected under law, it would be easy for the majority to disregard them in the name of democratic majority rule, and that majorities might well seek to influence the electoral process in order to ensure their permanence in power. Through her advocacy, public legal practice and decades on the bench, RBG worked tirelessly to ensure that constitutional interpretation encompassed an ever broader swath of equality.

A landmark Supreme Court case that typifies Justice Ginsburg’s influence in broadening the meaning of discrimination in the United States is the 1996 United States v Virginia. Written by Ginsburg and passed in a seven to one decision, the overwhelming Supreme Court majority struck down the Virginia Military Institute’s traditional male-only admissions rule. The only dissenting justice was William Rehnquist, while Justice Clarence Thomas recused himself because his son was enrolled in the VMI at that time. In drafting the decision, RBG stated that the institute had failed to demonstrate “exceedingly persuasive justification” for banning women from admission. The ban was, then, unconstitutional, since it violated the Equal Protection Clause of the Fourteenth Amendment.

In seeking to get around the equality requirement, the State of Virginia offered the same sort of “separate but equal” ploy so often utilized to perpetuate racial discrimination, but this time applying it to gender. In short, it offered a program entitled the Virginia Women's Institute for Leadership (VWIL), to be provided through the nearby liberal arts school, Mary Baldwin College.

But Justice Ginsburg’s majority decision argued that the VWIL would not provide the same rigorous military training that men received at the VMI, nor would it boast the same curriculum, faculty or ultimate career opportunities to women as to men, including those arising from the contacts and reputation implicit in attending the all-male academy. Again drawing the parallel between racism and sexism, Ginsburg referred to Sweatt v Painter, a 1950 decision in which the Court had ruled that it was unconstitutional to segregate law schools in Texas because an alternative all-black law school that had been set up failed to provide the same benefits to its students that the prestigious and long-standing white school did. According to the Ginsburg majority decision, "The VWIL program is a pale shadow of VMI in terms of the range of curricular choices and faculty stature, funding, prestige, alumni support and influence."

She went on to write, “Generalizations about ‘the way women are,’ estimates of what is appropriate for most women, no longer justify denying opportunities to women whose talent and capacity place them outside the average description.” What she was subtly yet radically telling the society of those times, legal scholars say, was that if there is any woman who can meet a state’s standard for any sort of opportunity, then no woman can be denied access to that opportunity.

Perhaps the prime role of the Supreme Court should be protection of “we the people” against the frailties of democracy and the overarching power of both federal and state government. Ginsburg had a profound understanding of this responsibility. And a perusal of her advocacy, her appellate court performance and her victories and dissents in her many years on the Supreme Court make clear the debt she is owed not only by women, but also by racial and ethnic minorities, the LGBT community, political dissidents and people accused of alleged crimes—in other words, every social group or individual whose civil and human rights have too often been ignored by those representing the majority in a supposedly democratic society. In short, this diminutive woman with her enormous intellect and heart was no less than the epitome of justice, equality and the rule of law.

In a nation in which so many women owe protection of their basic rights to the persistent commitment to equality of this iconic Supreme Court justice, it is ironic that another woman has been picked by the Senate majority—one of those domineering majorities whose nefarious influence Justice Ginsburg spent her life seeking to limit—to try and  ensure that some of the results of victories fought and won by RBG and other staunch advocates of true democracy are eventually dismantled.

There is no way to know precisely how Amy Coney Barrett will perform as a Supreme Court Justice, but it seems clear that she has an almost diametrically opposing view to that of Ruth Bader Ginsburg when it comes to the tenets of democracy and, in particular, the basic rights of American women, including their reproductive rights. If members of the far-right who proposed her are successful in their hopes that she will do their bidding, it will be a slap in the face to the legacy of “the notorious RGB” and sadly, American democracy will be the worse for it.

 

US DEMOCRACY—ENDANGERED SPECIES

We are taught that in a representative democracy, checks and balances make it impossible to have a dictatorship because it is the system, not individuals, which makes the Constitution inviolable. Well, the current president’s ever expanding abuse of power, and the apparent incapacity of the rest of the government to put a stop to it, make it clear that this is yet another lie our teachers told us.

Trump and McConnell - anti-democracy jihadists

The Age of Trump has hinged on just two men: President Donald Trump, who has consistently run amok and afoul of the rule of law, and Senate Majority Leader Mitch McConnell, who has blocked any and all attempts to stop him.

The vast majority of GOP House and Senate members, with only a small handful of exceptions, has acquiesced to Trump’s hostile takeover of the party. It appears that this has been the case because GOP members of Congress worry that  opposing him might hurt their re-election chances with his anti-Washington, authoritarian base, because they are afraid that he will pillory them on Twitter, or because his clearly racist, sexist, xenophobic, anti-civil rights, politics suit them to a “T” (party).

And so they have fallen in line, rank and file—some against their better instincts but motivated by fear or blind ambition—behind the autocratic forty-fifth White House occupant and have basically reneged on their sworn obligation to defend the rule of law, deferring to the absolute power of the president and his right-hand henchman, Mitch McConnell. This Republican Party is the party of Lincoln no longer. Nor is it any longer at the service of the Constitution or the interests of the majority of the American people. Wittingly or unwittingly, it is at the service of Trump, and so far has kept him from having to respond for the grave damage that he is doing to the country, to the rule of law and to representative democracy.

The GOP has been rendered the POT, an apropos acronym meaning Party of Trump. And with the indispensable aid of the current attorney general, who has relinquished the traditional independence of that post to place the Justice Department at the beck and call of the president, these two autocrats alone now decide what the law and what the interpretation of the law will be.

The rest of the three-branch system has had to look on helplessly, seeing their every action quashed, as the US has been turned into an autocratic regime run by a madman and ensured by his shill, just over the course of the last three years. If the so-far ineffectual opposition to Trump fails to muster the kind of overwhelming support necessary to send Trump, McConnell and other staunch Trump enablers packing at the end of this year and to immediately initiate a serious reconstruction era for beleaguered American ideals, justice and equality, the chances, after four more years of abuse, of ever again re-establishing the United States as Americans and the world once knew it will be slim to none. 

MANY A TRUE WORD...

When I was a boy, I often heard my mother quote an old adage: Many a true word has been spoken in jest.

I hated it when she said it because it usually was aimed at me whenever I said something cruel, unkind, unjust or self-serving and then, when she called me on it, would claim I was “just kidding.” When I did this, like I say, I was just a boy. It’s a puerile and only very thinly veiled ploy that is wholly unsophisticated and simply doesn’t withstand the slightest scrutiny.

And yet, the 45^th president of the United States makes use of this childish device on a not infrequent basis. One of the first times we heard it was when the infamous Access Hollywood tape became public. You’ll recall that on that tape, among other totally inappropriate and sexist things that Donald Trump said, he bragged that he could “grab women by the pussy” and they wouldn’t do anything to stop him because he was a star.  He would later say that it was “just locker room talk”—a variation of the “just kidding” argument—as if that justified it or rendered him any less repulsive for saying it.

The Access Hollywood tape is now part of a long list of offensive or potentially dangerous things this president has said and later tried to justify by arguing (or having one of his surrogates argue) that he was just joking.   

At the height of his campaign to win the presidency over former Secretary of State Hillary Clinton, Trump publicly and famously said, “I will tell you this: Russia, if you’re listening, I hope you’re able to find the 30,000 (Clinton) emails that are missing. I think you will probably be rewarded mightily by our press.” He thus not only openly encouraged Russia to interfere in the 2016 elections, but also tacitly admitted that he believed reports of Russian operatives hacking sensitive US communications.

However, when Special Counsel Robert Mueller, who was investigating Russian interference in US affairs, sent a written question to the US president’s attorneys regarding this campaign statement, Team Trump responded that the president (then candidate) had  made the statement “in jest and sarcastically, as was apparent to any objective observer.”

Be that as it may, Mueller’s probe showed that it was no more than five hours after Trump’s 2016 statement before Russian agents were already actively engaged in hacking Hillary Clinton’s server and eventually the communications of the Democratic National Committee. Furthermore, although the Mueller Report fell short of establishing evidence of an actual conspiracy between Trump and the Kremlin, it did indeed establish that there were multiple lines of communication between Russia and Team Trump.

When, later in the 2016 campaign, thousands of emails hacked from the DNC and from Clinton’s campaign chief John Podesta were published in a public information dump orchestrated by publishing transgressor Julian Assange’s WikiLeaks and picked up by the mainstream media, Trump crowed at a public rally, “I love Wikileaks!” Clearly, Trump and Assange shared inimical feelings toward Hillary, Trump because of the election campaign in which he was constantly insisting that she should be “locked up”, and Assange dating back to Hillary’s stint as secretary of state, when the Obama administration sought to bring charges against the Wikileaks founder for his role in the publication, among other things, of incidents of wrongdoing by US troops that were being kept secret by the military.

After his “I love Wikileaks” cheer, Trump would go on to praise the organization dozens more times, for as long as it was undermining his rival’s campaign. When Assange was arrested in London, however, after holing up for seven years in the Ecuadorian embassy in order to elude arrest warrants in Britain, Sweden and the US, the president’s chief spokesperson, Sarah Huckabee Sanders told Chris Wallace of Fox News that the president “clearly...was making a joke” regarding Wikileaks  during the 2016 campaign. Trump, for his part, seems to be suffering from “Wikiamnesia”, since when asked by reporters what he thought of Assange and Wikileaks now, after the rogue publisher’s arrest, he said, “I know nothing about WikiLeaks.”

Sarah Sanders once again pulled a joker from the deck after Trump asked, “Can we call it Treason?” when Democrats in Congress failed to applaud his State of the Union address. Democrats said accusing opponents of treason for not praising the executive seemed a lot like fascism, to which Sanders claimed that the president “was clearly joking.”

And then there was the time Trump claimed to have been joking when he suggested to a gathering of law enforcement officers that they should “not be too nice” to the suspects they arrested. And the time that he said former President Barack Obama was “literally the founder of ISIS.” After that outlandish claim, Trump tweeted of those who were appalled by such a suggestion, “They don’t get the irony.”

The list goes on, but the latest presidential “joke” is, perhaps, his most narcissistic and authoritarian-minded yet. This is his controversial two bonus-years “joke”.

But first, he had a laugh at the expense of the Mueller investigation on the telephone with Vladimir Putin, the very Russian head of state whose espionage agents carried out a disinformation campaign that sought to skew the 2016 US general election in favor of Trump. The hour-long phone call between the two leaders was a thumb in the eye to everyone who finds Russia’s interference in US domestic affairs completely unacceptable. It came just two weeks after the release of the Mueller Report on the special counsel’s investigation into Russian meddling, which corroborated that this had indeed taken place. Despite denying any Russian state interference in US affairs, Putin had admitted that he was “rooting” for Trump to win.

Well, that interference was never discussed in the US president’s latest talk with Putin—an anti-democratic strongman for whom Trump has continuously expressed admiration since his 2016 presidential campaign. Rather, Trump encouraged Putin to reset their good personal relations now that “the Russia hoax” was over. The president told reporters that Putin had “actually sort of smiled when he said something to the effect that it (the Mueller investigation) started off as a mountain and ended up being a mouse. But he knew that because he knew there was no collusion whatsoever.”

When critics pointed out that the communication with Putin had been a phone call rather than a video conference, so Trump’s assertion that Putin had smiled seemed rather like wishful thinking, the White House rushed to clarify that the president had misspoken and meant to say that Putin had “laughed, chuckled.”

Surely, neither version made any difference to Americans who find rampant Russian anti-American cyber-espionage no laughing matter. And considering the grave contents of the Mueller investigation report, a critical mass of Americans find the president’s quasi-carnal relations with the Russian autocrat baffling and disturbing to say the least.

But back to the “two-year bonus round”. Last weekend, lawyer, Liberty University president and Trump-Evangelical Jerry Falwell Jr. took to Twitter to compliment Trump on his “no collusion, no obstruction” status following release of the Mueller Report. Falwell bought into Trump’s own theory that the Mueller investigation had been an attempted coup orchestrated by Democrats. The Liberty University president tweeted, “Trump should have 2 yrs added to his 1st term as pay back for time stolen by this corrupt failed coup.”

Far from explaining to Falwell that, in case he hadn’t noticed, the US was a constitutional republic based on the rule of law and that presidents only served on behalf of the people and only for the terms mandated by law, Trump re-tweeted Falwell’s seditious suggestion and added: “Despite the tremendous success that I have had as President, including perhaps the greatest ECONOMY and most successful first two years of any President in history, they have stollen [sic] two years of my (our) Presidency (Collusion Delusion) that we will never be able to get back.”

Ruth Ben-Ghiat, a New York University professor and researcher who specializes in the traits of authoritarian rulers, in response to a query from The New York Times, said, “Everything that he (Trump) says is a trial balloon—even his, quote, ‘jokes’ are trial balloons.” According to Professor Ben-Ghiat, “If you look at what he jokes about, it’s always things like this. It’s the extension of his rights, it’s the infringement of liberties.” She added that, “Authoritarians are continually testing the boundaries to see what they can get away with, and everything he does is a challenge to Democrats to mount some response against him.”

The Falwell and Trump tweets underscored fears expressed by Speaker of the House Nancy Pelosi about the possibility of Trump’s refusing to accept the outcome of the 2020 election if his Democratic rival wins. She suggested that if Democrats were to win, they needed to “win big” in order to protect the country from the kind of divisiveness that any refusal by Trump to accept an orderly transfer of power could cause.

Alarm and condemnation expressed in the media and in opposition circles regarding the portent of Trump’s tweeted enthusiasm for Jerry Falwell Jr.’s anti-democratic and unconstitutional suggestion was so swift and so strong that the White House felt called upon to issue a denial. Officials said the president was “just joking” when he talked about being owed an extra two years over and above his four-year term.

It is noteworthy that the president’s latest “joke” comes at the dawning of a constitutional crisis, in which the Executive Branch is actively rejecting legislative oversight and seeking to rule the country as an autocracy that answers to no one for its actions. In my many years as an expatriate and newsman, I’ve had the fortunate professional experience and the dubious personal distinction of living under and next door to a rather wide variety of populist authoritarians and hardcore dictators. It’s an experience that, until now, not a lot of Americans have had, so for many it’s hard to see the signs of what could be coming or even of what’s happening right now. On the one hand, there is Trump’s base, made up of people who seem to have no use for democracy and who are perfectly happy to be ruled by an autocrat. On the other is the majority of Americans, who simply can’t bring themselves to believe that anything as intrinsically alien as authoritarianism could ever happen in the United States.

Friends, all I can say is, “Wake up!” It can, and it is.

WRECKING BARR

Donald Trump is the granite boulder against which reputations are smashed. William Barr’s is the latest in a long series.

Barr - proved unworthy of his reputation

Prior to his confirmation as attorney general, Barr was thought of by many on both sides of the congressional aisle—despite his obsequious spinning and justifying of criminal behavior witnessed in the Iran-Contra affair under both the Reagan and George H.W. Bush administrations—as a sound constitutionalist and legal scholar, as well as a “straight-shooter” who could be counted on to carry out his duties as the nation’s  highest-ranking law enforcement officer with unyielding adherence to the necessary objectivity and independence of that post. But in light of his performance in handling the Mueller Report, Barr has proven himself to be unworthy of the high regard in which he was previously held.   

Generals Kelly and McMaster - too much, too long

Noteworthy among earlier alleged “adults in the room” who trashed their good names before, far too belatedly, abandoning the Trump camp are generals John Kelly and H.R. McMaster. In both cases, they were broadly seen as patriots and men of good faith who joined and remained in the Trump administration, more than anything else, as a means of guiding a clueless president along a legal and legitimate path in a complex world that he was loath to comprehend, while acting as “damage control” whenever it proved impossible to sway Trump from the designs of his most disastrous policies.

Be that as it may, both men overstayed their usefulness to the United States in this sense and ended up trying, against their better judgment, to justify the administration’s madness rather than frontally opposing it and, eventually, only after sullying what, in both cases, had been stellar records, decided they could no longer remain at odds with their own ethics and resigned. Too late, as it turns out, not to be splashed by the blowback from Trump’s lies and his hostile relationship with the Constitution and the rule of law.

Latest news updates regarding the two-year Mueller investigation and Barr’s presentation of it to the public suggest that the attorney general has forsaken the responsibilities of his office and scotched his good name in the legal and political community by acting, not as the representative of constitutional law and order, but as a partisan Trump surrogate.

A few corroborating facts:

 - On March 24, William Barr prefaced the release of a redacted version of the Mueller Report with a four-page letter, described at the time as “a summary” of the report’s contents, in which he issued the opinion (stated as fact) that the special counsel’s findings demonstrated no collusion by the president and his 2016 campaign team with the Russian government in its interference in the general elections, nor did they demonstrate any attempt by the president to obstruct justice by seeking to squelch an investigation into Russian interference and Trump-team collusion with it.

 - The government pushed this narrative with the president calling the report a “complete and total exoneration” and repeating the words “no collusion, no obstruction” ad nauseam following publication of the attorney general’s four-page tone-setting message.

 - On March 27, Special Counsel Mueller is reported to have written to Barr protesting the attorney general’s roll-out of the report. A long-time acquaintance of Barr’s, Mueller pulled no punches. The fact alone that the special counsel wrote a memo to Barr is a very big deal, since Robert Mueller’s sound reputation as one of the last true “boy scouts” in Washington would have precluded any interference with the attorney general’s handling of the report that, as per protocol, he turned over to the Department of Justice on conclusion, had Barr properly addressed the investigation’s findings. According to an article in The Washington Post, Mueller challenged Barr’s four-page public statement, complaining that it did not reflect the “context, nature or substance” of the report’s contents.

Mueller - not amused

 - The next day, Barr and Mueller are understood to have had a fifteen-minute telephone conversation. And the day after that, Barr wrote a memo to Congress saying that his four-page letter of March 24 shouldn’t be taken as “a summary” of the report. Clearly, this was because he had been unable to convince Mueller that the letter was anything but an attempt to spin the true findings of the report before it was released to the public. Barr knew full well that the vast majority of the US public would never peruse the details of the 440-page report except as chewed up and digested sound bites on their favorite news media—which would have vastly different interpretations across the spectrum between, say, Fox News and CNN.

 - Barr’s intention to continue to set a pro-Trump tone for release of the Mueller Report was apparent in his stalling of its release for over two weeks, while Trump and surrogates, including himself, used the time to hammer away at the no-collusion-no-obstruction narrative and to fabricate a conspiracy theory that the real idea behind the investigation had been to stage “a coup” to bring down the administration.  

 - On April 10, Barr gave Senate testimony regarding the Mueller Report. During that testimony, he lied when asked if Mueller supported his assessment of the report as per his four-page letter of introduction, saying that he didn’t know if Mueller supported it. Clearly, Mueller had already told him both by memo and probably by phone, that he vigorously disagreed with the attorney general’s interpretation, saying that Barr’s letter had created “critical confusion” among the public.

 - Barr finally delivered the Mueller Report to Congress and the public on April 18. But not without holding a pre-release press conference during which he renewed the no-collusion-no-obstruction narrative as if to further establish a pro-Trump tone among those who would never actually read the report, among whom Trump’s staunchest base could almost certainly be counted.

 - Once the report was released, and despite the attorney general’s redactions, it was obvious to any objective observer that Barr had purposely sought to mislead the public regarding the contents and conclusions. Among other things, it was clear that Mueller and his team had found multiple examples of what could be considered collusion—numerous instances of the Russian government offering its help to the Trump campaign and of Trump surrogates demonstrating enthusiastic interest in that help rather that reporting attempts by a hostile power to influence US elections to the FBI—and that the president did indeed seek to obstruct justice but was at least minimally saved from himself by aides who merely ignored and disobeyed his orders, as well as by current DOJ rules holding that a sitting president couldn’t be indicted. The report further and implicitly invited Congress to investigate and, if politically expedient, impeach the president, stating specifically that the investigation in no way exonerated Trump.

As a side note, it is interesting to recall that Barr’s predecessor, Jeff Sessions, faced an uphill battle in his confirmation as attorney general. Sessions was viewed by many as not only a Trump surrogate but also as a long-time political manipulator, a racist bigot and a good ol’ boy with an, at best, ambiguous relationship with the moral high ground. He was expected to be a loyal Trump servant and to do the president’s bidding with no regard for the required impartiality and legal tenets of his office.

Sessions - unlikely adult in the room

Against all odds, however, and no matter what one might think of Jeff Sessions’ civil rights record, he turned out to be a much more mindful and independent attorney general than Barr is proving to be. Sessions incurred Trump’s rage and disfavor by recusing himself with regard to the investigation of ties between Russia and the Trump campaign, because he admitted to having had contact with the Russians.

Sessions maintained the independence of the Department of Justice, even despite overwhelming pressure for him to demonstrate loyalty to the president over loyalty to the nation or to resign. Barr, on the contrary, was practically a shoo-in for the post, despite having written a paper shortly before his nomination the basic premise of which was that sitting presidents couldn’t be indicted and that obstruction wasn’t obstruction if the president committed it (a.k.a. the Nixon defense). Politicians on both sides of the aisle saw Barr as a brilliant lawyer and as a man of law. But since then, he has delighted Trump and his base by proving just the opposite, by basically showing himself to be, in contemporary street vernacular, “Trump’s bitch.”

There can be little doubt that Robert Mueller has held himself to a higher standard in his role as special counsel in charge of the investigation into obstruction of justice, Russian interference in the US election process, and possible collusion between American political agents and the Russian government. Barr, meanwhile, has shown himself to be disingenuous and politically prejudiced to the detriment of the very American justice that he is sworn to uphold.