Here is where I find myself today.
One: I will vote for the Democrat choice in November, period.
Two: I want President Joe Biden to resign the presidency immediately based upon his obvious decline in overall health; it is simply wrong to say that Kamala Harris cannot do the job and do it well and I pray that the Democratic Party does not discard her at its convention in August 2024.
Three: The Supreme Court in Trump v. USA has offered its final proof that it is a corrupt institution not worthy of respect or deference.
OK, why?
I do not think it is helpful to spend much time on One and Two. I saw the debate between Trump and Biden. I find myself offended at the chorus of people who insist that I not see and hear what I saw and heard. I am with influential people such as James Carville and Mark Leibovitz of The Atlantic. President Biden is a good and decent man who helped get much done in his presidency. But to say he just had a “bad night” is ridiculous. OK, if it was a cold, the problem is he will have colds again. What will happen if he’s awakened at 3a and told that North Korea has just launched an intercontinental ballistic missile? Is his wife going to say, not now, he needs his rest?
It is not enough for President Biden to merely withdraw his candidacy for a second term. If the reason is his health, then he needs to resign now.
I have watched VP Harris since she was D.A. in San Francisco. She is smart, quick on her feet, able to engage with anyone in conversation, without the help of a teleprompter. She is ready to be president and I believe she will make chow mein out of Trump on a debate stage.
Now for number 3.
The United States Supreme Court has embarrassed itself to such an extent that in appropriate cases, the lower federal courts should decline to follow it, through the mechanism of concluding that a number of its pronouncements are dicta. The Court has decided a number of cases in which Alito and Thomas should have recused. The grounds were so obvious that their continued participation poisoned the entire process of case evaluation and decision.
The Court’s overruling of Planned Parenthood v. Casey (America continues to not understand that the controlling case on abortion was from 1992 in Casey) was an unacceptable rejection of respect for precedent. The Court’s overruling of the Chevron deference doctrine was without basis in law and again an unacceptable rejection of “stare decisis.”
Then we come to Trump v. United States. The problem here is that 6 justices who used to work in the executive branch and believed in the doctrine of “The Unitary Executive” decided to insert that doctrine as the controlling principle for one branch of government, established by Article 2 of our Constitution. “The Unitary Executive” theory is dangerous and is nothing short of a rejection of American Democracy.
Here is what writer Allen Shoenberger said in a 2022 Albany Law Review essay:
“President Trump clearly believes he was a king. He was not. Both the Constitution itself and Constitutional history make that abundantly clear. The kingship claim is made under the guise of the Unitary Executive Theory, a theory that lacks any historical grounding and a theory that is fundamentally at odds with why the American Revolution was fought. It is a very dangerous theory, as the Presidency under Trump illustrates. Its culmination: a physical assault on the Capital.”
Justice Roberts’ majority opinion in Trump v. USA addresses the word “immunity” as applied to the Office of the President of the United States. The Court was asked to basically decide: Can a former president be prosecuted for crimes committed while in office. For that matter, the question about a president who commits crimes (as laid out in the criminal code whose provisions were enacted over the past 240 plus years by Congress) is just as relevant if a case were brought while the person was “in” office.
Underlying the entire decision was the basic question: When can crimes committed by a sitting president result in a legitimate prosecution? The answer from the majority was basically, never. Critical to understanding the majority’s reasoning is to understand that talking about “official acts” and “unofficial acts” or “private conduct” misses the point. It is entirely reasonable to worry about a president who commits obvious crimes under the guise of “officialdom.” Roberts and his group were there at oral argument and heard the example of ordering Seal Team 6 to kill a political rival. They heard the example and then wrote an opinion that would allow for that example to happen in real life. Their only real reaction: To call the dissenters “fear mongerers” about extreme hypotheticals. Such a condescending dismissal of the real world consequences of what this Court now allows is offensive and beneath the Court.
The position of the 6 person majority is that the Executive Branch of government is under the total control of the single President of the United States. In other words the Department of Justice is controlled by POTUS. HE tells it what to do. So as applied to a Justice Department that seeks to prosecute, under the Unitary Executive theory, the President can do whatever he or she wants and as long as what he or she “does” can be couched as “official,” the Department cannot be allowed to prosecute.
But then the Court reveals the really scary stuff. “Immunity” means “cannot be prosecuted” anywhere, anytime, by anyone. That includes state prosecutors. Undoubtedly, the 6 person majority in Trump v. USA would claim that a POTUS cannot be prosecuted by States, for violation of state law, if the POTUS claims he was doing his job. And included in Trump v. USA is the statement, without legal support, that “motive” of the POTUS cannot be part of any prosecution AND there can be no introduction of evidence of anything done “officially” to accomplish a “private” goal.
We have all been told that the Supreme Court does not have a law enforcement component. It cannot force compliance with its rulings. Our nation’s people and our nation’s Legislative and Executive Branches of government (Constitution Articles 1 and 2 respectively) follow Supreme Court orders because of respect for the Court.
It is time to disrespect the United States Supreme Court. Here is how, with regard to Trump v. USA:
Chief Justice Roberts lays out his opinion in typical fashion. He starts with a brief summary as to why we are here and what are the basic facts that bring us here. The first conclusion I recommend: The Supreme Court’s insistence on characterizing “official” and “unofficial” or “private” is “dicta” and should be disregarded as any form of guidance regarding a POTUS who violates the criminal law. A violation is a violation, regardless of when.
Here, let me pause. Every POTUS in our nation’s history up to Trump managed to do their jobs without the specter that what they were doing could cause them to end up as a defendant in a criminal case. In their role of Commander in Chief, the presidents up to Trump managed to issue orders that led to loss of life, almost always in a war context. Trump was the first person ever to be elected POTUS who failed to understand and respect the distinction between THE OFFICE of the POTUS and the human being who occupies that office. That humility was possessed by every prior POTUS. Not Trump. He considered the Office of the POTUS as his playpen. Anything and everything goes.
Yet the Supreme Court majority in Trump v. USA based its decision on the unfounded worry that without its insertion of “immunity” into the Constitution Article 2, every president of one party would prosecute his successor from another party as soon as a transfer of power took place. This is paranoia without a basis in fact, except as to Trump.
CJ Roberts was presented with a case wherein EVERYTHING alleged by the Department of Justice was in the context of Trump’s candidacy for a second term. There was no attempt to charge Trump with a crime in connection with his private meetings with Putin and the North Korean Boy Terrorist. There was no attempt to charge him with a crime for ordering the killing of an Iranian military leader. No, the people who have served as POTUS have managed to do their jobs without worry that a prosecutor was close by. Only and I mean only, when a person became POTUS who was used to a life unburdened by following law, did we have a live case of actual criminal law violations that had nothing to do with the usual expectations for what a POTUS does AS POTUS.
It is worth taking a look at how Roberts describes what is before him. At page 3 of his opinion, he refers to Trump’s claims, “properly characterized.” That is just another way of saying, here is what I did in connection with the election others claimed I lost. Roberts and his colleagues hold the view that Trump had every right to do what he did; it was part of his “official duties.” CJ ROBERTS: NO IT WAS NOT. It is NOT in a POTUS’ bag of duties to question an election result. It was “the candidate’s” right to go to court with evidence of a fraudulent election. Once the Courts rejected the claims, it was the obligation of the candidate to accept the Courts’ rulings. It was EVEN MORE IMPORTANT for the POTUS to accept the Court’s rulings. Thus, every single thing that Trump did, every single utterance by Trump that was part of a plan to overturn the election results WAS A CRIME and it should not matter that all of this was part of official actions. Who cares?
Here is the statement by CJ Roberts at the heart of the entire matter:
“…a President has absolute immunity from criminal prosecution for actions performed within the outer perimeter of his official responsibilities, to ensure that he can undertake the especially sensitive duties of his office with bold and unhesitating action.” (Page 3 of the opinion).
Wrong, wrong, wrong. Every president before Trump was able to do his job boldly and unhesitatingly without concern that a prosecutor was around the corner.
CJ Roberts and his colleagues forgot the guiding light provided decades ago by Justice Potter Stewart. When talking about the late nights he spent watching pornography as part of the review of cases that asked what is protected by the First Amendment and what is not, Stewart famously said “I know it when I see it.”
Message to Supreme Court: The experienced and careful prosecutors, grand juries, investigators, etc. have not been and never would be interested in prosecutions of presidents doing their jobs. The FBI, CIA, Justice Department investigators and lawyers have always been able to discern what is part of a president’s job. Absent the decision by this Supreme Court in Trump v. USA, a POTUS who decided that for national security purposes he must order the killing of AOC has committed a crime. With the decision in Trump v. USA, it appears that a POTUS who orders such a killing would be immune from prosecution.
The duties of the POTUS? Article 2 of the Constitution is a good start: “the executive power shall be vested in a President of the United States…four years…shall be elected as follows…[only a natural born citizen…[over 35 years old]…”in case of removal…[succession plan]…compensation…shall not receive…any other Emolument…[the famous oath, word for word is laid out here in the Constitution] (section 1); “The President shall be Commander in Chief of the Army and Navy….” “he may require the Opinion, in writing, of the principal officer in each of the executive departments…” “he shall have power to grant…pardons…” “he shall have power…to make treaties…” he shall nominate… ambassadors, other ministers and consuls, judges...all other officers…shall have power to fill up all vacancies that may happen during the recess of the Senate…(section 2); “he shall…give…the State of the Union…recommend [to Congress]…measures [Legislation]…he may convene both houses…he shall receive ambassadors…HE SHALL TAKE CARE THAT THE LAWS BE FAITHFULLY EXECUTED…” (SECTION 3). “shall be removed from office on Impeachment for and Conviction of…” (section 4)
My friends: Do you see what I see? The Constitution sets forth the duties of the POTUS. Do you see anywhere in the Constitution the right to break the law when breaking the law is not linked to a good faith effort to carry out these duties? IS THERE ANYTHING IN THE CONSTITUTION THAT SUGGESTS THAT IMMUNITY FROM PROSECUTION IS NECESSARY? PROPER?
Until Trump, did anyone remotely demonstrate the character of one who even sought the presidency for any reason other than to serve in good faith? IS IT FAIR TO ASSERT THAT TRUMP NEVER VIEWED THE PRESIDENCY AS ANYTHING OTHER THAN HIS? TO DO WITH AS HE WISHED. CONTRARY TO THE SAD AND MISPLACED BELIEF OF SO MANY AMERICANS, IS THERE ANY EVIDENCE ANYWHERE THAT TRUMP EVER HAD GOOD FAITH IN MIND IN CONNECTION WITH THE ARTICLE 2 DUTIES OF THE U.S. PRESIDENCY?
The problem with the United States Supreme Court in Trump v. USA is that it believed it had to come up with a rule of general application for all time, despite the reality that there was never a Trump before Trump and if we are fortunate, there will never be a Trump after Trump. But in asserting that belief, our U.S. Supreme Court took this opportunity to place into law The Unitary Theory of the Presidency, despite over 200 years of practice in America that taught that the power of the presidency should be NO GREATER than the power of Congress or the Power of the Judiciary. Since the adoption of the Constitution, the most obvious example was that the Department of Justice, while part of the Executive Branch, should operate independently of The Office of the President of the United States. That a 6 justice majority of our Supreme Court decided to throw out that practice in favor of an all powerful POTUS is both wrong, dangerous and sad.
I also highly recommend that the lower court look to the following as the “holding” in Trump v. USA and relegate everything else to dicta not binding on lower courts. In his rather haphazard opinion, CJ Roberts says this at page 14:
“The President must…be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no dangers of intrusion on the authority and functions of the Executive Branch.”
I ASSERT THAT EVERYTHING ELSE ROBERTS SAID IS DICTA. Roberts had no basis to imply or expressly assert that any and all conversations Trump had with people from the Justice Department are out of bounds when it comes to a crime. Trump’s statement to a Deputy AG to question the legitimacy of the election, leave everything else to me and the Republicans in Congress, was an instruction to lie to the nation and that is part of a conspiracy to thwart the peaceful transfer of power. Period. End of discussion. Cannot be subject to immunity. Any suggestion by Roberts otherwise should be treated as dicta.
As for what I call the holding in Trump v. USA, the job of Special Counsel Smith will be to show that every part of his indictment of Trump poses no danger of intrusion on the authority and functions of the Executive Branch, BECAUSE EVERY ACT BY TRUMP WAS NOT AN ACT ASSOCIATED WITH HIS DUTIES UNDER THE CONSTITUTION, BUT INSTEAD WAS AN ACT TO CRIMINALLY HOLD ONTO POWER DESPITE THE RESULTS OF A LAWFUL AND FAIR ELECTION.
There you have it my friends. Democracy in America can only survive if we as a nation reject the outrageous words of a corrupt Court that issues opinions joined by justices who clearly violated the rules of ethics in participating despite the obvious appearance of conflicts of interest. And we can only survive as a Constitutional Republic based on Democratic ideals if we decide that Trump and Trumpism is just another way of establishing an autocracy of the type we rejected….ON JULY 4, 1776.
Happy Birthday, the America I Once Knew.