Sunday, February 21, 2021

Supreme Court May Trim Voting Rights Safeguards

            The Roberts Court appears to be poised again to narrow federal safeguards for voting rights in the states. The justices are scheduled to hear arguments next week [March 2] in an important legal challenge brought by Democrats and minority group voters aimed at nullifying two Arizona laws that the challengers say have the effect of suppressing minority votes.

            The Grand Canyon State, it must be noted, has a history of racial discrimination in voting procedures comparable to the worst of the states in the pre-civil rights South. With its substantial Hispanic population, Arizona adopted an English literacy test as a prerequisite for voting when admitted as a state in 1912 and maintained that requirement until 1972. In fact, Arizona was one of the two states outside the South that were singled out for special federal scrutiny in the federal Voting Rights Act (VRA) because of their histories of racial discrimination.

            The two consolidated cases at the Supreme Court, Brnovich, Attorney General v. Democratic National Committee and Republican Party of Arizona v. DNC, pose the important, recurrent issue of whether the later-amended 1965 law prohibits election laws and policies that hurt minority group voting even if race-neutral on their face. In its ruling in the cases, the Ninth U.S. Circuit Court of Appeals found Arizona’s laws in violation of the federal law by following three other federal circuits that had similarly adopted a “results” test in applying the VRA.

            The Arizona laws at issue include one enacted in 2016 that was sponsored by a Republican legislator concerned with suppressing the minority vote in his politically competitive district. The law, known as HB 2023 and codified at Ariz. Rev. Stat. § 16-1005, prohibits the practice known as “ballot harvesting,” a get-out-the-vote tactic used by Arizona’s Democrats but not by the state’s Republicans.

            Arizona already had a law on the books that prohibited actual fraud in third-party ballot collection. The new law goes further to make it a low-level felony, punishable by fines or imprisonment, for anyone other than a family member or caregiver to collect a voter’s “voted or unvoted early ballot.” The other law at issue, codified at Ariz. Rev. Stat. §16-584, adopts a strict “out-of-precinct” (OOP) policy of discarding provisional ballots cast by voters outside their assigned voting precinct.

            The law requires that the out-of-precinct voter’s ballot be discarded in its entirety, not only for local races but also for district- or statewide races for legislative seats, Congress, or president. In a close race, the discarding of thousands of ballots under that policy could change the result, as plaintiffs argued through the four-year course of litigation and as dramatized by Joe Biden’s narrow 11,000-vote margin over President Trump in the 2020 election.

            Arizona may be thought of as a Republican state, based on the role that the state’s five-term senator Barry Goldwater played in birthing present-day Republican conservatism in the 1960s. The state’s longest serving senator, however, was Carl Hayden, a Democrat who served in the U.S. Senate from 1927 to 1969. Hayden’s colleague for two terms was a fellow Democrat, Ernest McFarland, who lost to Goldwater in seeking a third term in the 1952 election.

            Today, Arizona again has two Democratic senators: Krysten Sinema defeated her Republican opponent in 2018 by 56,000 votes and Mark Kelly beat his Republican opponent in 2020 by about 80,000 votes. Biden’s victory over Trump marked the ninth time the state voted for the Democratic presidential candidate out of twenty-seven elections since statehood.

            The evidence in a ten-day bench trial before U.S. District Court Judge Douglas Graves in October 2017 showed that the ballot collection and out-of-precinct laws affected minority voters, Hispanics and Native Americans, more than they affected white voters. But Graves accepted Arizona’s argument that the laws held up because they served the state’s interests in ballot security and administrative efficiency. On appeal, a panel of eleven Ninth Circuit judges voted 7-4 to find that H.B. 2023 had been enacted “with discriminatory intent” and that both policies “unduly burden minorities’ right to vote.”

            The Supreme Court agreed in October to hear Arizona’s appeal of that decision. The Court, it will be recalled, gutted the Voting Rights Act in a 5-4 decision eight years ago by effectively nullifying the act’s so-called preclearance requirement. That provision required states or counties with histories of racial discrimination to get approval from the Justice Department or a federal court for any changes in election laws or procedures. With that provision in effect, the three covered Arizona counties were frequently blocked from instituting proposed election law changes.

            At the Supreme Court, conservative groups and civil rights organizations have filed more than three dozen amicus briefs in the current cases to underline the high stakes for future voting rights cases. Even with the cases pending, however, Arizona lawmakers are working to make voting more difficult with pending proposals, for example, to eliminate no-excuse absentee voting and to bar election officials from sending ballot applications to voters except on the voter’s request.

            Supreme Court handicappers might view Arizona as a likely winner in the cases, given Roberts’ pivotal vote in the 2013 decision and the Court’s current 6-3 conservative majority after  President Trump’s three appointments. Conservative textualists can rule that way, however, only by ignoring Congress’s decision in 1982 to amend the law specifically to prohibit any voting practice that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”


Saturday, February 13, 2021

Courts Can Still Hold Trump Accountable for Riot

       President Trump’s team of second-string lawyers began their defense in his 2021 impeachment trial by contending that the former president should be held accountable for the January 6 Capitol riot, if at all, not in the United States Senate but in criminal courts.

            With the Senate evenly divided between Democrats and Republicans, six Republican senators joined the Democrats in rejecting the Trump lawyers’ plea to bar the impeachment trial altogether. The evidence expertly presented by the House managers showed, to any sworn-to-impartiality juror, that Trump incited the mob that he had summoned to Washington to stage what proved to be a deadly insurrection at the seat of the United States government.

The U.S. Department of Justice, under a new attorney general unbeholden to Trump, should take Trump’s lawyer, Bruce Castor, at his word and open a criminal file against citizen Trump, no longer protected by presidential immunity. The former U.S. solicitor general Neal Katyal, commenting on CNN midway through the trial, suggested that Attorney General-designate Merrick Garland should put the case at the top of his to-do list.

With the trial over, former White House adviser David Gergen, also on CNN, agreed. “Certainly, the Department of Justice and the FBI have grounds to investigate Trump,” Gergen remarked.

Most significant in the House managers’ offer of proof was the new disclosure that the organizers of the Jan. 6 rally at the ellipse had initially gotten a permit only for a rally, not for a march to the Capitol. The additional permit for the march was sought only after the White House took charge of the event. Trump himself directed the mob to march to the Capitol, initially promising that he would join them but backing out apparently because of security objections from the Secret Service.

            The path to the two-thirds majority needed for a conviction was never open to the House of Representatives even though ten Republicans joined in approving the article of impeachment on Jan. 13, making it the most bipartisan House vote on impeachment in U.S. history. Trump’s acquittal by a 57-43 vote on Saturday was likewise the most bipartisan impeachment vote in U.S. history as seven Republicans joined in voting to convict Trump of incitement and potentially disqualify their former president from ever again holding office in the national government.

            The Trump lawyerscourtroom pit bulls rather than constitutional law expertscontested the “incitement to insurrection” with a mix of political vitriol, legal poppycock, whataboutism, gaslighting, evasion, and outright falsehoods, as documented by fact-checkers at the New York Times. Their opening argument failed when the Senate voted 56-44 on Feb. 9 that Trump, though out of office, was “subject to a court of impeachment for acts committed while president.”

            The argument, rejected by the vast majority of nonpartisan legal experts, failed on the basis of constitutional text and historical precedent, as shown by the House managers. The Impeachment Article itself (Art. I, sec. 3, cl. 7) lists after removal from office by conviction a second available sanction “disqualification to hold and enjoy any Office of honor, Trust, or profit under the United States.” The House managers also noted as precedent the 1875 impeachment of the Grant administration’s secretary of war, William Belknap, who had already resigned after being caught up in a corruption scandal. The Senate voted 37-29, after full debate, to try Belknap on the article of impeachment approved by the House, but he avoided conviction on a 35-25 vote, short of the two-thirds majority needed for conviction.

             Impeachment is not a criminal proceeding, but lawyers on both sides devoted lots of words during the five-day trial (Feb. 9-13) to a Supreme Court precedent applicable to a criminal case. The Court’s decision in Brandenburg v. Ohio (1969) held, in a case brought against a speaker at a Ku Klux Klan rally, that the First Amendment permits criminal prosecution for political advocacy only if “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

            The House managers introduced as evidence on the first prong the “big lie” that Trump propagated over a two-month period that he failed re-election only because the election was stolen. They also emphasized Trump’s role in summoning supporters to Washington on the very day that Congress was scheduled to complete the Electoral College vote count to confirm Joe Biden’s victory in the presidential election.

            The evidence that the Capitol riot followed promptly after Trump’s speech to the crowd on the morning of Jan. 6 speaks for itself as satisfying the second prong of the Brandenburg test: “likely to incite or produce such [lawless] action.” The House managers also introduced evidence from some of the rioters themselves that they marched to the Capitol in response to Trump’s instructions. The violence on Jan. 6, according to the lead House manager Jamie Raskin, was “a culmination, not an aberration.”

            The House managers also showed Trump’s “propensity for violence” in political rallies and in tweets throughout his presidency. Would the evidence suffice for a beyond-a-reasonable-doubt criminal court jury? Juries are hard to predict, as any veteran court reporter can attest, but this courtroom observer is confident that a reasonable jurist would find this evidence sufficient to let the case go to the jury. And the case belongs in the courts, the one branch of the United States government that Trump has failed to pressure into submission. 

Saturday, February 6, 2021

Justices Turn Blind Eyes to Holocaust Victims

            Nine decades later, many of the grievous wrongs of the Holocaust have yet to be redressed, even imperfectly. Two groups of Holocaust victims went before the Supreme Court in December to ask the justices to open federal courthouse doors to their long-delayed pleas for a measure of justice, but the justices turned blind eyes to both groups in companion decisions issued last week [Feb. 3].

The unanimous decisions in Federal Republic of Germany v. Philipp and Republic of Hungary v. Simon blocked two sets of plaintiffs, with U.S. citizens in both groups, from seeking compensation from the present-day German and Hungarian governments for wrongs inflicted by Germany’s Nazi art-looters and Hungary’s collaborationist wartime regime.

Foreign governments generally enjoy sovereign immunity from private lawsuits in courts of other countries, but a reform-minded Congress adopted significant exceptions to that international law principle in enacting the Foreign Sovereign Immunities Act (FSIA) in 1976. The law provides, in a section codified at 28 U.S.C. §1605(a)(3), that foreign governments can be sued in U.S. courts for “property taken in violation of international law.”

The two cases arose from different contexts. In the German case, the heirs of long-deceased German Jewish art dealers claimed in their lawsuit that Hitler’s art-loving deputy Hermann Goering pressured their ancestors, in the early years of Nazi rule, into selling a collection of medieval relics to Prussia’s cultural foundation at the bargain-basement price of $1.7 million in 1935 dollars.  

In the Hungarian case, fourteen Hungarian-born survivors, now living in the United States, Canada, Australia, and Israel, filed a class action on behalf of all Hungarian survivors seeking compensation for the money and property taken from them as Hungarian officials and employees of the state-owned railway confiscated herded Hungarian Jews by the hundreds of thousands on to trains destined for death camps.

The cases attracted relatively little news coverage even though several Jewish groups and Holocaust survivor organizations filed amicus briefs in October urging the justices to rule in the plaintiffs’ favor and allow their suits to proceed in federal courts. Earlier, however, a group of foreign international law experts, organized by two German-born academics, filed an amicus brief that emphatically rejected any exception to foreign sovereign immunity for international crimes or other “grave breaches” of international law.

The amicus briefs filed in support of the plaintiffs included one on behalf of the American Association of Jewish Lawyers and Jurists, written by Arthur Traldi, a Jewish American lawyer and a former war crimes prosecutor before the International Criminal Court. In his brief, Traldi criticized the foreign scholars for what he called their “myopic and decontextualized analysis” of the case.

In their decision, the U.S. justices were no less myopic. In his sixteen-page opinion for the unanimous Court, Chief Justice John Roberts treated the case only as a jurisprudential exercise in how best to apply international law without creating nettlesome issues for future case. Roberts does not refer, even glancingly, to the moral depravity of Germany’s persecution of Jews even in the Nazis’ early years before the death camps.

Roberts instead emphasized the so-called “domestic takings rule,” which protects a foreign government from suit in another country’s courts for a taking of property from its own citizens. That rule is important to limit outside interference with, for example, a country’s decision to nationalize domestic companies owned by, among others, foreign shareholders.

The Trump administration similarly emphasized the “domestic takings rule” in an amicus brief siding with Germany and Hungary in the two cases. The FSIA’s expropriation exception does not apply, the administration’s lawyers wrote, “when a sovereign has taken property of its own nationals,” not even “in the context of a human rights violation.”

The two cases attracted little news coverage even after the justices heard oral arguments on Dec. 7. The arguments prompted one veteran Court watcher, the Washington Post’s always thoughtful columnist Chuck Lane, to echo concerns that Justice Stephen Breyer raised during the session. As Lane noted in a Dec. 28 column, Breyer worried out loud about the possibility that China might haul the United States into a Chinese court to answer for the wrongs done to Chinese laborers in the 19th century or that Japan might require the United States to answer for the wrongs done to the Japanese Americans interned in concentration camps in the United States during World War II.

Roberts closed his syllogism by writing genocide out of the case altogether. “We need not decide,” he wrote, “whether the sale of the [art dealers’] property was an act of genocide, because the expropriation exception is best read as referencing the international law of expropriation rather than of human rights.”

Breyer’s concerns surfaced in Roberts’ final paragraph. “As a Nation, we would be surprised—and might even initiate reciprocal action—if a court in Germany adjudicated claims by Americans that they were entitled to hundreds of millions of dollars because of human rights violations committed by the United States Government years ago,” Roberts wrote. “There is no reason to anticipate that Germany’s reaction would be any different were American courts to exercise the jurisdiction claimed in this case.”

By closing U.S. courts to the plaintiffs’ claims, the Supreme Court deprives them of any likely recourse. Two German commissions found, improbably, that the plaintiffs’ ancestors sold the medieval relics to Goering at a fair market price and not under duress. As for the now dispersed Hungarians, they are unlikely to imagine any realistic chance for redress in their former homeland, now led by the anti-Semitic autocrat Viktor Orban.

Sunday, January 31, 2021

Biden Urged to Offset Trump's Legacy in U.S. Courts

          President Joe Biden has worked hard during his first ten days in the White House to undo major parts of the poisonous legacy that Donald Trump left behind by, for example, repealing Trump’s ban on transgender military service members and repealing the travel ban that Trump instituted against predominantly Muslim countries in his first weeks in office.

            Biden faces daunting obstacles, however, in undoing Trump’s most lasting legacy: the appointment of more than 225 judges at all levels of the federal judiciary, including three Supreme Court justices, nearly one-third of the judges on federal courts of appeals, and almost one-fourth of the country’s federal district court judges.

            Those life-tenured judges—several of them appointed in their 30s and many appointed in their 40s—will serve through Biden’s presidency even if he is re-elected to a second term and perhaps even past the mid-century mark in 2050. To counter their influence and the obstacles Trump judges might pose to Biden’s policies, Biden is turning to a familiar Washington device: a special commission on court reform staffed by the White House and reporting directly to the White House.

            Some of the commission’s members have been selected, according to an article in Politico by reporter Tyler Pager, but its mandate remains uncertain. Before his election, Biden was noncommittal on one step favored by liberal and progressive groups: expanding the number of justices on the Supreme Court to offset the ideological shift resulting from Trump’s three right-wing appointments to the nine-justice bench in his single term as president.

            Meanwhile, without addressing Supreme Court expansion, more than 70 liberal and progressive groups have joined in a “statement of principles” drafted by the Alliance for Justice that urges Biden to support legislation creating new judgeships, to fill existing vacancies “expeditiously” with demographically and professionally diverse nominees, and to fast-track nominations through the Senate just as Republicans did during Trump’s presidency

            Trump’s success in transforming the federal judiciary was a political coup of sorts, many years in the making, thanks to tactics by the Senate’s Republican leader, Kentucky’s Mitch McConnell, in slowing President Obama’s ability to fill federal judgeships and expediting confirmation of Trump’s nominees. Thanks to McConnell’s tactics, Trump was greeted with more than 100 judicial vacancies in his first weeks in office. By contrast, Biden now has around 50 vacancies to fill, including three retirements announced since he took office.

            Obama, elected twice with a majority of the popular vote, appointed 311 federal judges in eight years in the White House, compared to 226 for Trump in four years. With a Republican majority, McConnell all but shut down Senate confirmations of Obama nominees in the Democratic president’s last two years in office. Most famously, McConnell refused during the 2016 presidential campaign to convene a hearing on Obama’s nomination of federal appeals court judge Merrick Garland to fill the Supreme Court vacancy left by the death of Justice Antonin Scalia.

            Earlier in Obama’s presidency, the Democratic-majority Senate had confirmed his two Supreme Court appointees, Sonia Sotomayor and Elena Kagan, with more than 60 votes for each. By contrast, Trump’s three Supreme Court appointees – Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – were all confirmed with fewer than 60 votes in the 100-vote Senate. Barrett was confirmed in October 2020 by a party-line 52-48 vote: she became the first Supreme Court nominee in more than a century to be confirmed without a single vote from a senator of the opposing party since Stanley Matthews’ 24-23 confirmation in 1881.

            Trump reversed the advances that his three previous predecessors – Obama, George W. Bush, and Bill Clinton – had made in diversifying the federal judiciary, according to a compilation by John Gramlich, a senior writer with Pew Research. Out of 226 Trump judges, only 37 – or 16 percent -- were non-white: nine blacks, nine Hispanics, 13 Asians, and six “other.” More than one-third of Obama’s judges – 115 out of 320 or 36 percent – were nonwhite. Bush named 58 non-white judges out of a total of 264, or 18 percent. Clinton named 90 nonwhite judges out of 367, or 25 percent.

            With Trump still in the White House, his judges were having a definite impact in closely divided cases in federal courts, according to a compilation by the progressive advocacy group People for the American Way. Five Trump appointees on the Eleventh U.S. Circuit Court of Appeals provided most of the votes in a 6-5 decision that upheld a Florida measure blocking ex-felons from regaining the right to vote. Trump judges voted in other cases to limit voting rights: notably, Gorsuch and Kavanaugh cast decisive votes in a 5-4 decision that prevented Wisconsin from extending the deadline for counting absentee ballots in the state’s primary elections and in a later 5-3 decision that barred curbside voting for disabled and elderly voters in Alabama.

            With Biden now in the White House, a Trump-appointed judge acted in a lawsuit filed by the state of Texas to block Biden’s plan to pause deportations for 100 days at the southern border. U.S. District Court Judge Drew Tipton, on the bench for only six months, issued a nationwide injunction on Jan. 28 to block the Biden plan. The Republican politicians who complained during Trump’s presidency that district court judges have no authority to issue nationwide injunctions raised no concerns about this one.

In the meantime, Biden’s only opportunity to counter Trump’s influence on the federal judiciary depends on court expansion, according to one leading advocate. “The entire agenda of what needs to get done is in jeopardy thanks to stolen federal courts,” Aaron Belkin, director of Take Back the Court, remarked to the Politico reporter. “We know,” he added, “that court expansion is the only strategy to allow the administration to solve the problems facing the country.”



Sunday, January 24, 2021

Unity Elusive Despite Biden's Plea at Inauguration

        What a difference four years can make! Four years ago, Donald Trump painted a dark and foreboding picture of American carnage in a divisive inaugural address filled with falsehoods and exaggerations. The conservative columnist George Will called it “the most dreadful” inaugural address in history, as I noted in a critical orders at the time.

Four years later, Joe Biden was upbeat and resolute last week [Jan. 20] as he appealed in a widely admired inaugural address for unity in confronting the “cascading crises” facing the country as he assumes the presidency for the next four years. My college classmate Chris Wallace used his Fox News anchor desk position to call it the best of the inaugural addresses he has witnessed since John Kennedy’s in 1961.

 “We must end this uncivil war that pits red against blue, rural versus urban, conservative versus liberal,” Biden said, halfway through his 22-minute address. “We can do this if we open our souls instead of hardening our hearts.”

After winning the most votes ever by a presidential candidate, Joe Biden looked out at a National Mall filled not with cheering crowds but with nearly 200,000 American flags symbolizing the 400,000 Americans lost to the coronavirus pandemic on Trump’s lackadaisical watch. Trump left town without accepting responsibility or expressing regret for the deaths.

In contrast, Biden used what he called his first act as president to  “ask for a moment of silent prayer to remember all those we lost this past year to the pandemic.” After a pause, he followed with a pledge “to honor them by becoming the people and nation we know we can and should be.”

Biden acknowledged, as he had to, the scene two weeks earlier when “violence sought to shake this Capitol’s very foundation.” He left unspoken the extreme security precautions put in place to guard against a recurrence: the unprecedented closing of the National Mall to Inauguration Day crowds and the deployment of more than 20,000 National Guardsmen throughout the capital city.

On Fox News, opinion hosts Tucker Carlson and Sean Hannity conveniently skipped over the deaths that resulted from the Trump supporters’ Jan. 6 insurrection at the Capitol and instead depicted the security precautions as aimed only at silencing dissent.  In his address, however, Biden singled out “the rise of political extremism, white supremacy,  domestic terrorism” as a security threat that “we must confront and will defeat.”

 On the issues, Biden laid out an agenda in stark contrast to Trump’s “Make America Great Again” and instead promised not only “greatness” but also “goodness.” He promised to gain global prestige not by “the example of our power” but by “the power of our example.”

“With unity, we can do great things. Important things,” Biden declared, listing them one by one. “We can right wrongs. We can put people to work in good jobs. We can teach our children in safe schools. We can overcome this deadly virus. We can reward work, rebuild the middle class, and make health care secure for all. We can deliver racial justice. We can make America, once again, the leading force for good in the world.”

Biden skipped over the partisan divisions that hampered those goals during the year of the pandemic: the armed resistance from Trump supporters to mask mandates and the White House’s political posturing over closing schools to limit the spread of the virus. He listed, without directly blaming Trump, the economic disasters of the pandemic: “millions of jobs lost,” “hundreds of thousands of businesses closed.”

Biden listed as well other challenges that Trump had left unaddressed in four years in the White House. “A cry for racial justice some 400 years in the making moves us. The dream of justice for all will be deferred no longer,” he vowed. Trump had been all but silent as the Black Lives Matter movement stepped up pressure to reform police use-of-force policies.

Next, Biden turned to climate change: “A cry for survival comes from the planet itself. A cry that can’t be any more desperate or any more clear.” However clear the problem may have been, Trump installed in key positions climate-change deniers and, in fact, banned the term from government publications. He started his administration by ostentatiously withdrawing from the Paris climate agreement, even while the United States was lagging on the pact’s goals for reducing greenhouse gas emissions.

With the inaugural ceremonies over, Biden got down to work quickly with a flurry of executive orders that, for example, halted further work on Trump’s border wall and reversed Trump’s travel ban targeting mostly Muslim countries. He also mandated mask-wearing on all federal properties and most public transportation, instituted an array of other steps to speed up vaccinations, and called on federal agencies to develop policies to limit the spread of the virus in schools and workplaces.

Other steps in his first days included personnel moves: ousting the veteran union buster as general counsel of the National Labor Relations Board and kicking out the Trump propagandist as director of the Voice of American (VOA). Meanwhile, the Senate was moving only slowly on Biden’s Cabinet nominees, stymied in part by Minority Leader Mitch McConnell’s stiff-necked negotiating stance on power-sharing in the 50-50 Senate. For McConnell, it seems, Biden’s appeal for unity fell on deaf ears.

Sunday, January 17, 2021

Capitol Riot Fits History of White Mob Violence

          Hundreds of President Trump’s supporters were rampaging inside the U.S. Capitol on Wednesday, Jan. 6, as Trump’s eldest, Donald Jr., went on to Twitter belatedly to plead with the mob to avoid violence. “This is wrong and not who we are,” Junior tweeted as noted in this account. “Be peaceful and use your 1st Amendment rights, but don’t start acting like the other side.”

            Ten days later, thousands of National Guardsmen are deployed in the nation’s capital this weekend in an effort to safeguard President Joe Biden’s inauguration on Wednesday [Jan. 20] against a recurrence by another pro-Trump mob.

            Junior’s “not who we are” tweet could be understood as referring specifically to his father’s campaign and presidency or, more broadly, to “who we are” as Americans. In either case, he was demonstrably incorrect, as seen in Trump’s conduct as candidate and president and in the long history of white mob violence in the United States.

 Violence and the threat of violence were part of his father’s campaign from the outset and into his presidency, as seen for example when Trump urged supporters at a campaign rally in Iowa in January 2016 to “knock the crap” out of any hecklers.  Trump went on then, and in later rallies, to promise to pay legal fees of any supporters who ended up facing charges for assaulting dissidents.

Junior’s tweet, interpreted more broadly, was also demonstrably incorrect as a matter of American history. In fact, white mob violence in aid of white supremacy has been a recurrent pattern in U.S. history from the slavery era through the post-Civil War Reconstruction and through the 20th century civil rights movement.  In the words of the late 20th century song, Junior “don’t know much about history.”

Here, then, a refresher: the post-Civil War Reconstruction suffered its greatest single setback when white insurrectionists took up arms against the biracial government in majority-black Grant Parish, Louisiana, on Easter Sunday, April 13, 1873. A white mob attacked the parish courthouse  in the Red River Valley town of Colfax in an armed shootout with black Republicans barricaded inside that eventually forced the outnumbered blacks to surrender.

The event is marked by a historical marker erected in 1951 that describes the Colfax Riot as marking the end of “carpetbagger misrule” in the South. An estimated 150 blacks were killed in the episode, many of them execution-style after they had surrendered. Three whites were killed: their deaths are memorialized in an obelisk that stands outside the courthouse and praises them for having died while fighting in defense of “white supremacy.”

            The historian Eric Foner, in an interview with the writer Isaac Chotiner in The New Yorker, saw a parallel between the history of white supremacy violence during the Reconstruction and the Capitol riot more than a century later. “It’s not unprecedented that violent racists try to overturn democratic elections,” Foner remarked, after recalling similar riots that displaced biracial governments in New Orleans in 1874 and in Wilmington, N.C., in 1898.

            The Capitol riot needs to be understood in the same context, Foner explained in the interview. “It was not a fly-by-night operation,” Foner said. “ It was not a misguided group who got a little out of hand or something like that. It was really an attempt to completely subvert the democratic process by violence.”
            The Reconstruction-era white mobs believed that blacks “were incapable of taking part intelligently in a democratic government,” according to Foner, and for that reason believed that they were restoring honest and responsible government by ousting black officeholders and their carpetbagger allies. Foner, a professor at Columbia University and author of Reconstruction: America’s Unfinished Revolution 1863-1877, recalls in the interview that high school history classes through the 1960s taught Reconstruction in negative terms consistent with the white supremacist critique of the era

Foner links Trump’s “birtherism” attack on Obama’s legitimacy as president to the same philosophy: “straight-out white supremacy.”  Trump “was pushing the idea that Obama was not really an American and, therefore, could not be president,” Foner recalled. “The idea that Black people are actually aliens in a certain way – that they are not truly American, that the only true Americans are white – that’s been around for a long time in our history.”

            Foner’s narrative in effect forces us to view the Capitol riot through a racial lens. The mob was not only predominantly white but almost exclusively white, despite the role of one black Trump supporter in helping organize the event. But just as in the 19th century, the white mob was trying to prevent the election of a distinctively biracial government, with a woman of color as vice president and a racially and ethnically diverse Cabinet.

            The Biden-Harris ticket won the support of more than 90 percent of the nation’s black and brown voters, according to post-election exit polls. The Biden victories that Trump’s supporters were challenged including four states – Georgia, Michigan, Pennsylvania, and Wisconsin – where black voters in major cities were critical in flipping the results from the 2016 election.

            Trump carried the majority of the white vote in 2020, according to exit polls, just as he had done in 2016. But a majority of the white vote left Trump more than 7 million votes behind Biden in the overall popular vote.  Trump, it must be remembered, incited the mob to march to the Capitol by saying that they needed to “show strength” to reclaim the country. “You’ll never take back our country with weakness,” Trump said.

Saturday, January 9, 2021

Trump Must Be Removed From Office: Now!

            President Trump must be removed from office, as soon as possible, before he can do more harm to law and order, justice, and political discourse. Trump incited the mob that stormed the U.S. Capitol on Wednesday [Jan. 6, 2021: a date that shall live in infamy] just as Congress was about to complete the process of electing Joe Biden as president and confirming Trump as the loser in 2020 election.

            My home state of Tennessee faced a similar dilemma in 1979 in dealing with an out-of-control lame-duck chief executive as evidence emerged that Gov. Ray Blanton was selling pardons through his counsel to convicted felons. The U.S. attorney in Nashville worked with Democratic legislators to cut off the pardon-selling scheme by helping engineer the installation of the Republican governor-elect Lamar Alexander three days before the scheduled inauguaration..

            Trump has already engaged in a pardon-issuing binge and is reported to be considering many more in his final days in office, including possible pardons for son-in-law Jared Kushner and even a legally dubious pardon for himself. Trump’s enablers and apologists need to take steps now to prevent any further debasement of the presidential pardon power and any further damage to the constitutional order.  

            My former Tennessean newsroom colleague Keel Hunt detailed the Tennessee story in his masterful book, Coup: The Day the Democrats Ousted Their Governor, Put Republican Lamar Alexander in Office Early, and Stopped a Pardon Scandal (Vanderbilt University Press, 2017). As Keel tells the story, the successful effort to thwart further debasement of the governor’s office required acts of political statesmanship by the state’s Democratic leaders and the then U.S. attorney, Hal Hardin, who started the ball rolling by calling Alexander with word that Blanton had more pardons set to be issued.

            With similar statesmanship here in Washington, Republican leaders and the interim U.S. attorney Bruce Sherwin could combine to make it untenable for Trump to remain in office for the ten days that remain in his four-year term. As the federal prosecutor for the District of Columbia, Sherwin could and should state that Trump’s speech on Wednesday morning urging the mob toward the Capito is enough to charge him with the federal crime of incitement.

            Sherwin raised this possibility by telling reporters on Thursday [Jan. 7] that his office is considering possible criminal charges against “all actors, not only the people who went into the building.” Under questioning, Sherwin left open the possibility that Trump could be included among the targets. “We’re looking at all the actors,” Sherwin repeated, according to the account in The New York Times. “If the evidence fits the elements of a crime, they’re going to be charged.” The next day, however, prosecutor Kenneth Kohl batted the suggestion away. “We don’t expect any charges of that nature,” he told The Washington Post.

            Here, for anyone needing a bill of particulars, is the federal law that prohibits incitement 18 U.S.C. §373. The law makes it a crime for anyone to “solicit[], command[], or induce[]” another person to “engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States . . . .”

            The Supreme Court, in the leading case of Brandenburg v. Ohio (1969), held that the First Amendment does not protect from possible prosecution speech, such as Trump’s, if “directed to inciting or producing imminent lawless action and . . . likely to incite or produce such action.” Trump’s speech to a throng that numbered in the thousands clearly satisfies those requirements. He directed the placard-waving crowd m to march toward the Capitol and exhorted them to show strength. “You will never take back our country with weakness,” he said.

            The timing of the march needs to be stated clearly: Trump spoke around the noon hour as Congress was set to convene, imminently, at 1 PM to count the Electoral College votes that would verify Biden’s election and confirm his own defeat. In effect, Trump was exhorting a lynch mob to march into the courtroom just as the jury was about to return a verdict. And, in fact, the mob’s successful entry into the Capitol forced Congress into recess, delaying the eventual certification of Biden’s victory past midnight.

            In contrast to the amorphous situation in Tennessee four decades ago, the U.S. Constitution sets out two procedures for removing Trump from office before his term expires: removal by impeachment and conviction in Congress or invocation of the Twenty-Fifth Amendment based on a finding by his own Cabinet that he is “unable to discharge” the duties of the office. Either of those procedures is problematic, but Republicans interested in reclaiming a measure of the party’s integrity could provide the votes needed for conviction in the Senate or the support needed to persuade Vice President Pence to join in invoking the Twenty-fifth Amendment.

            At this writing, Pence is said to be opposed and, in fact, he declined to take a call on Thursday from House Speaker Nancy Pelosi and Senate Democratic leader Chuck Schumer, who wanted to ask him to take that step. Leading newspapers joined last week in editorially endorsing whatever steps are needed to remove from Trump from office now: not only The New York Times, but also USA Today and the solidly conservative Wall Street Journal. As the Times put it, Trump’s “potential to wreak havoc is enormous,” even if his remaining time in office is short. USA Today's editorial cited Trump’s incitement of the assault on the Capitol as evidence that he has “forfeited his moral authority to stay in office.