Democracy on a respirator, but don’t despair, yet

If we are a nation of laws, and nobody here is above the law, then we can only save ourselves from the crisis we are in by the just application of law. The rule of law saved democracy during Trump’s baseless attempted litigation challenging the outcome of the 2020 presidential election, even judges appointed by Trump were required, by the law itself, to rule against a litigant who produced no evidence of wild conspiracy claims or who made baseless claims requiring the suspension of disbelief and the disregard of actual evidence in order to win. Including the obvious fact that many Republicans were voted into office across states on the same ballots that Trump lost and baselessly insisted were subjected to massive fraud and rigging by a bipartisan cabal of traitors and insurrectionists.

Law is a human construct, and far from perfect, but it is also the most perfect thing we have as citizens to preserve any kind of justice, as well as our form of representative democracy itself. If we have a law against conspiring to stop the functioning of government, which we do [1], it needs to be deployed against those who more and more openly believe, in the words a speechwriter wrote for Barry Goldwater, an extremist Republican candidate sixty years ahead of his time in terms of party politics:

“Extremism in defense of liberty is no vice. Moderation in pursuit of justice is no virtue.”

Goldwater, you will recall, was the far-right presidential candidate from Arizona who advocated nuking America’s enemies back to the stone age and lost virtually all fifty states in the 1964 election [2]. He is most famous today for the so-called Goldwater Rule [3], a policy made by the American Psychiatric Association, a voluntary membership organization, that states no therapist may venture a public opinion as to the mental and emotional fitness of a political candidate unless he or she has personally examined the person and the patient has consented to have psychiatric details disclosed to the public.

The Goldwater Rule is not a law, or a rule that is binding on anyone who is not a member of the APA, nonetheless, the media often treats it as a law binding on all psychiatrists, even in the face of a candidate or elected official posing a publicly observable imminent threat to our nation. The rule, which was “doubled down” on by the APA soon after Trump became president, has been cogently challenged by many American psychiatrists recently, most outspokenly Dr. Bandy Lee.

The Goldwater Rule, we are told, applies even when you have a president who publicly shows himself daily to be a petulant, churlish, childish, vindictive, paranoid, attention seeking, megalomaniacal, corrupt, punitive, bullying, illogical, incoherent, amoral, transactional, compulsive liar. Even if this leader deliberately stokes an infuriating lie and organizes a rally and march based on that lie, to inspire a fight to overturn the election he lost, on the day the government is officially taking the ceremonial last step in the peaceful transition of power, and he sends a violent mob down to the Capitol to stop it. The Goldwater Rule prevents any shrink from talking about any of that, in their capacity as a psychiatrist, unless the unhinged elected official himself consents to a session and then the disclosure of a clinical diagnosis. Anything beyond “man, woman, camera, TV” is protected by the Goldwater Rule. Of course, anyone as critical of an American president as I am in this paragraph is clearly suffering from what Germans once called “Hitler Derangement Syndrome”.

There’s no law against going on TV and simply lying about whatever you want. Sad but true, in very few cases can anyone be prosecuted for simply making shit up, no matter how ugly or how likely destructive, and braying about it to the public. There is, however, a law against conspiring to stop the government, which is what the “Stop the Steal” riot did for hours on January 6.

It is frustrating to many Americans that the Department of Justice is so slow and deliberate in regard to holding the organizers of the conspiracy that led to a direct attack on democracy accountable. There is not even any apparent movement in this direction, though DOJ investigations are supposed to be conducted secretly without fanfare. We’d like to see some sign!

The law often grinds on slowly. It seems impossible, for example, that the Fulton County DA has not yet indicted Trump for what appears to be a very clear violation of the Georgia law against trying to interfere with, or coerce others to interfere with, a certified election result. The last act of that concerted attempt to overturn the Georgia election results is a recording millions of Americans have heard, for fuck’s sake, during which Trump violated every subsection of the Georgia law. The theory, I suppose, is that when taking a shot at a dangerous predator, be sure that shot is carefully aimed and powerful enough to actually stop the creature.

The Watergate-related indictments took two years to happen. The January 6 indictments are apparently going to take a while longer to assemble airtight cases for, aggravating though that is while the brazen co-conspirators are freely talking their ugly talk and broadcasting it to their increasingly enraged followers on shows like Steve Bannon’s The War Room.

If those indictments don’t happen within a reasonable amount of time, certainly well in advance of the heavily gerrymandered 2022 election (and full restoration of the 1965 Voting Rights Act by passing the two House bills is also critical, CRITICAL), stick a fork in our democracy, boys and girls, we’ll have Speaker of the House Donald Trump and the immediate censure of every non-white Democrat and traitor Republican in the House. There will also be summary expulsions for enemies of the Speaker, and probably also televised public book burnings, the kinds of things that always precede even worse barbarity.

And, as for the rule of law, we’ll have plenty more proud, angry, armed vigilante boys like Kyle Rittenhouse, free to take illegally possessed assault rifles into combustible situations like an angry protest over the perfectly legal police shooting, seven times in the back, of an American citizen, and then get acquitted in a trial presided over by a seemingly unrepentant Ku Klux Klansman.

And remember, folks, there’s no law against being in the Ku Klux Klan, it’s that American judge’s first amendment right of association and puts him in good stead for a future career as a celebrity opiner for Rupert Murdoch, OANN or Newsmax.

The law to keep an eye on is the one below, 18 U.S. Code § 2384. And if Merrick Garland doesn’t bring some indictments under this law, of the people who were in that war room in the Willard Hotel on January 5th and 6th and the guy who stood to gain the most from the conspiracy, had his co-conspirator’s bills paid and spoke regularly with them during the riot, we all ought to get down on our knees and, in the words of XTC, while we’re down there, kiss our asses goodbye.


If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.


Johnson carried 44 states and the District of Columbia, which voted for the first time in this election. Goldwater won his home state and swept the states of the Deep South, most of which had not voted for a Republican presidential candidate since the end of Reconstruction in 1877. This was the last time that the Democratic Party won the white vote, although they came close in 1992.



The Goldwater rule is Section 7 in the American Psychiatric Association’s Principles of Medical Ethics, which states that psychiatrists have a responsibility to participate in activities contributing to the improvement of the community and the betterment of public health, but they should not give a professional opinion about public figures whom they have not examined in person, and from whom they have not obtained consent to discuss their mental health in public statements. Wikipedia

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