Category: Rule of Law

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Catastrophists Imbued with Certain Certitude: Predicting How the Courts Will Address the Constitutional Crisis

Donald Trump is certain that he knows more than any general about how to fight a war and more than any scientist about climate science. By like token, some of my friends are certain beyond rational argument that the Supreme Court will just bow down to Trump. The professional constitutional lawyers are not so certain, see my post on The Constitutional Crisis, but what do they know?

I have had some challenging conversations in the last few days.

Well, que sera sera. The Supreme Court is going to do whatever the Supreme Court is going to do. Can I predict with certainty what they will be? No, I can’t. And neither, by the way, can the dean at UC Berkeley make a certain prediction. 

Certainly, the Supreme Court majority has made some awful decisions, and that’s a strong point in favor of the catastrophists imbued with certain certitude about the impending apocalypse.  

On the other hand, if the Supreme Court tells Trump he need not worry about obeying the Constitution, they are telling him it’s OK to ignore the Bill of Rights, imprison anyone he wants to lock up, and declare himself President for Life and Lord of Lords. 

Even if you are a very bad person, you might rationally hesitate to give someone that much power. Because—guess what?—you might be next on the list. 

There are some other considerations, too. For one, the Federalist Society and its cohorts have been on a 40-year quest to take over the courts and impose their regressive views on society, all in the name of “rule of law.” During the first Trump term, their efforts were crowned with success when they got three additional seats on the Supreme Court. But if, henceforth, a judge’s order isn’t worth the paper it’s written on, then the whole Federalist Society effort—to use its version of “law” to force a right-wing agenda down our throats—goes glug glug down the drain. 

And then there’s this. If law no longer matters, then a whole lot of the 1,322,649 lawyers in the United States no longer have a useful skill, and they are going to have to do something else for a living.

And, finally, there is this minor consideration. A whole lot of the crazy stuff that Trump and Elon are doing is not only unconstitutional or otherwise illegal but also economically hurtful—sometimes in disastrous ways—for Trump’s own supporters. 

No, ladies and germs, there are a lot of reasons why the Supreme Court may not muster five votes to destroy the constitutional republic.

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What Happens When and If Trump Defies a Supreme Court Order?

When the situation ripens to a direct conflict between Court and President, there will be conflicting voices other than Vance’s whispering into Trump’s shell-like ears. Vice President Vance will urge him to head headlong into catastrophe. Possibly, however,Orange Jesus might decide to back off. But more probably, in my view, he’ll tell John Roberts to take a long walk off a short cliff. 

What then?

I saw George Conway this morning saying that Trump would order the U.S. Marshals Service not to obey the Court’s order, the Service would comply with Trump’s directive, and that would be that. Our constitutional republic would be over and done with. 

I think he’s right about the Marshals Service, but predicting in predicting the imminent end of the republic, Conway might be out over his skis. 

Half the country—the folks who voted for Kamala—would take to the streets.

And, remember, this would be in a context where lots of Trump voters would have started to suffer from Trump’s disastrous policies, including his unconstitutional and otherwise illegal actions. Tariffs. Trade wars. Slashing the military. Slashing funds for hospitals in rural communities. And on and on and on. 

Irresistible force, meet immovable object.

It would appear that Vance and his cohorts are trying to maneuver the situation to a point where Trump has no choice but to (a) back down, bigly, or (b) declare himself Dictator for Life. 

Choice (b) would be unpopular with, maybe 65% of the country. 

And how will it all turn out? My crystal ball grows cloudy. But I do see blood in the streets. 

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The Fraternal Order of Police and the ICAP, Which Endorsed Trump, Are Pissed, Bigly

The International Association of Chiefs of Police (IACP) and the Fraternal Order of Police (FOP) have had long standing and positive relationships with both President Trump and President Biden and have greatly appreciated their support of the policing profession. However, the IACP and FOP are deeply discouraged by the recent pardons and commutations granted by both the Biden and Trump Administrations to individuals convicted of killing or assaulting law enforcement officers. The IACP and FOP firmly believe that those convicted of such crimes should serve their full sentences. 

Crimes against law enforcement are not just attacks on individuals or public safety — they are attacks on society and undermine the rule of law. Allowing those convicted of these crimes to be released early diminishes accountability and devalues the sacrifices made by courageous law enforcement officers and their families. 

When perpetrators of crimes, especially serious crimes, are not held fully accountable, it sends a dangerous message that the consequences for attacking law enforcement are not severe, potentially emboldening others to commit similar acts of violence. 

The IACP and FOP call on policymakers, judicial authorities, and community leaders to ensure that justice is upheld by enforcing full sentences, especially in cases involving violence against law enforcement. This approach reaffirms our commitment to the rule of law, public safety, and the protection of those who risk their lives for our communities.

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Happy January 16, Religious Freedom Day

The Virginia Statute for Religious Freedom, enacted by the Virginia Assembly, January 16, 1786, reads as follows:

An act for establishing religious Freedom.

Whereas, Almighty God hath created the mind free;

That all attempts to influence it by temporal punishments or burthens, or by civil incapacitations tend only to beget habits of hypocrisy and meanness, and therefore are a departure from the plan of the holy author of our religion, who being Lord, both of body and mind yet chose not to propagate it by coercions on either, as was in his Almighty power to do,

That the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavouring to impose them on others, hath established and maintained false religions over the greatest part of the world and through all time;

That to compel a man to furnish contributions of money for the propagation of opinions, which he disbelieves is sinful and tyrannical;

That even the forcing him to support this or that teacher of his own religious persuasion is depriving him of the comfortable liberty of giving his contributions to the particular pastor, whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, and is withdrawing from the Ministry those temporary rewards, which, proceeding from an approbation of their personal conduct are an additional incitement to earnest and unremitting labours for the instruction of mankind;

That our civil rights have no dependence on our religious opinions any more than our opinions in physics or geometry,

That therefore the proscribing any citizen as unworthy the public confidence, by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages, to which, in common with his fellow citizens, he has a natural right,

That it tends only to corrupt the principles of that very Religion it is meant to encourage, by bribing with a monopoly of worldly honours and emoluments those who will externally profess and conform to it;

That though indeed, these are criminal who do not withstand such temptation, yet neither are those innocent who lay the bait in their way;

That to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous fallacy which at once destroys all religious liberty because he being of course judge of that tendency will make his opinions the rule of judgment and approve or condemn the sentiments of others only as they shall square with or differ from his own;

That it is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order;

And finally, that Truth is great, and will prevail if left to herself, that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them:

Be it enacted by General Assembly that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief, but that all men shall be free to profess, and by argument to maintain, their opinions in matters of Religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities. And though we well know that this Assembly elected by the people for the ordinary purposes of Legislation only, have no power to restrain the acts of succeeding Assemblies constituted with powers equal to our own, and that therefore to declare this act irrevocable would be of no effect in law; yet we are free to declare, and do declare that the rights hereby asserted, are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right. 

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Moronic and Menacing

So … here’s a post, mainly about Trump’s lawsuit against the Des Moines Register et al., because they published a poll that turned out to be wrong, and his allegedly forthcoming lawsuit against CBS because he didn’t like the way they edited a Sixty Minutes interview.

In my view, Tim Miller makes some good points in the video, but let me cut to the chase, as the high flyers like to say.

“Commercial Speech” or “Political Speech”?

Commercial speech is now (and has been for some years) deemed to enjoy limited First Amendment protection, but is subject to regulation, in order to prevent fraud in the sale of goods and services. One such law is the Iowa Consumer Frauds Act—the only law that Trump’s lawyer claims was violated by the newspaper and the pollster. 

The legal regime that governs political speech is very different from that governing commercial speech. Political lies are generally protected from judicial scrutiny by freedom of speech and freedom of the press. A moment’s reflection will let you see the reasons for this principle: in essence, to protect the political process and to protect the courts from being politicized.

In the Iowa case, it’s unlikely in the extreme that the poll’s error was intentional, on the part of the pollster, or the newspaper, or the newspaper’s parent company. But let’s pretend we’re in law school, and let’s assume, for the sake of the discussion, that the pollster and the newspaper did lie intentionally.

Trump’s lawsuit should be summarily dismissed. First, the words of the Iowa Consumer Frauds Act don’t apply to the alleged intentional political lie. Second, it’s highly unlikely that the Iowa Legislature intended its Consumer Frauds Act to apply to political speech. Third, even if the Legislature did have such an intent, its intent to regulate political speech would violate multiple legal precedents on freedom of the press and freedom of speech. 

And, By the Way, People Who Live in Glass Houses Shouldn’t Throw Stones

If Trump wins his Iowa lawsuit—which he will not—then he will have created a precedent under which he can be prosecuted for multiple violations each day, if not each hour. 

Defamation, the N.Y. Times v. Sullivan Rule, and the Finer Points of Rape

“Creative” as he was—in the pejorative sense of the word—the legal genius who crafted Trump’s Iowa lawsuit did not claim defamation, because predicting that you’re going to lose an election does not reflect badly on your character.

By contrast, in the recently settled Trump case against ABC News, Trump worked himself into a high dudgeon because the jury only found he had forcefully inserted his middle finger into the victim’s vagina—not his actual dick—where has New York law on “rape” would have required penetration by the presidential pecker. Sexual assault? Yes. “Rape”? No. How dare you accuse My Excellency of rape when I only victimized her vagina with my finger!

Many have criticized ABC and its parent, Disney, for “caving” to Trump. Personally, I think it was a tough call—and I think it’s generally a good idea to apply some nuanced analysis to a generally difficult situation, not just to hurl bumper sticker insults. If you’re interested, I recommend this article from the New York Times: Inside Disney’s Decision to Settle a Trump Defamation Suit: Talks started and finished on the same day, after Disney decided that fighting the lawsuit could potentially hurt the company and protections for the press.

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Declaring Martial law: Action, Meet Consequences

Washington Post, South Korean Yoon Suk Yeol impeached after martial law ploy

Washington Post, With K-pop and light sticks, South Koreans demanded Yoon’s impeachment: K-pop fans, many of them young women, were especially visible at the party-like protests that preceded the South Korean president’s impeachment.

Posted by Ron Davis, Dec. 14, 2024

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Bullshit, Pretending to be 3-Dimensional Chess

MAGA Shock & Awe and the United States Senate

If you were a president-elect, and if your fondest ambition were to be like Orban or Putin, a high priority would be control of the power agencies: the Justice Department, the FBI, and the military. You would select three plausible appointees as Attorney General, FBI chief, and Secretary of Defense—people whose backgrounds would make it hard for a Republican senator to oppose. These choices would be evil, but highly intelligent. You would conspire with these three picks, getting them to commit to your authoritarian goals, but promising to conceal their goals until it’s too late to stop them. These people would not be Matt Gaetz or Kash Patel or Pete Hegseth. 

Now, I have long since concluded that trying to read the mind of the Orange God King is a fool’s errand. And, by the way, I am no fool, and neither are you. 

But, reflecting on Mango Jesus’s deeds (not his thoughts), I can say this. He has acted as if his fondest desire was to spit on our country’s main institutions of law and order, to order the 53 Republican senators to eat a meal of shit sandwiches, and to force them all to say—to make every mother’s son and daughter of them say—”Thank you, SIR. May we please have some more, SIR?”

And how did Lizard Brain try to bring this about? Well, you will remember that he first demanded—DEMANDED—that the Republican senators agree not to exercise their constitutional duty and right to advise and consent to presidential appointments.

Whoops! That didn’t work.

Then he tried to force Matt Gaetz down their throats as the new Attorney General. 

Whoops! That didn’t work, either, so he picked someone else. (A few posts from now, we’ll get to Pam Bondi. I promise you.)

Then he served up an inexperienced, dishonest, drunken lout, Pete Hegseth, as his choice for Defense Secretary.

Then, when that selection ran into Republican opposition, he talked about replacing Hegseth with a more palatable choice. 

Then someone realized that, with repeated Shock & Awe stunts going pear shaped, Trump was in imminent danger of getting a reputation as an incompetent old fool.

Then the folks around Trump began leaking that, while Hegseth’s nomination might be in deep doodoo, it was all a very clever ploy to use the nominee as a “heatshield,” to take attention away from the ghastliness of other nominees like Tulsi Gabbard, Kash Patel and RFK Jr. (See, e.g., Mark Caputo, Hegseth Brings His Nomination Back from the Brink.)

Friends and neighbors, if you think Trump and his henchpersons are playing three-dimensional chess, then please let me know, because I have a fine, fine bridge in Brooklyn that I can let you have at a cheap price. 

And What Will the 53 Republican Senators Do About the Shock & Awe Bullshit Nominees?

Three points. First: I don’t know what they’re going to do, and I won’t try to predict what they are going to do. Second: One can always hope, but I have zero expectation that their decisions will be based on patriotism, principle, and reason. Third point: All that said, the most reliable means of predicting human behavior is careful analysis of motivation and incentive. Accordingly, I strongly recommend

Jonathan Martin, Here Are the GOP Senators Best Positioned to Take on Trump: These are the Republican lawmakers who, by dint of age, independence or unusual constituencies, could provide a crucial check on Trump’s dictatorial ambitions

Martin names ten of them: McConnell, Collins, Cassidy, Tillis, Ernst, Murkowski, Grrassley, Young, Moran, and the yet-to-be-named (by Governor Mike DeWine) person from Ohio to replace J.D. Vance, and he takes a careful look at each of them—their individual situations, their likely motivations, and their incentives. See also

Aaron Blake, The fascinating—and important—Florida and Ohio Senate appointments: A look at the dynamics for both appointments, which could make the Senate mor or less Trump-y

In Sum

There will be 53 Republican senators in the next Congress. To Trump’s absurd nominees, one may expect at least 43 of them to say, “SIR, thank you for the shit sandwich, SIR. SIR, may I please have another one, SIR.”

But, for Trump, 43 will not be enough. He needs 50 (so that Vice President Vance can break the tie).

How many will he get?

Que sera sera.

Posted by Ron Davis, Dec. 7, 2024

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First, Kash Patel Came for the Justice Department Lawyers

Kash Patel, Trump’s pick to head the FBI, tells us where he stands on civil liberties:

First they came for the Justice Department lawyers who prosecuted the coup plotters.

But I was a Republican senator, not a prosecutor, and I had always been publicly vague about what happened in early 2020, so I did not worry.

Then they came for the journalists who told the truth about Trump.

But I was a Republican senator—and I have always been very careful never, ever to tell the truth about Trump—so I did not worry.

Then I made a casual remark about Trump, and I cast a single, solitary vote that Trump did not like, and they came after me.

And there was no one left to stand up for me.