A well-funded movement has been active in this country, starting as a lunatic fringe shortly after 1954’s Brown v Board of Ed decision when an “activist” Supreme Court unanimously ruled that segregation was unconstitutional in our public schools. The reactionary movement kicked into high gear during the Reagan Administration, when the troublesome Fairness Doctrine was finally removed from the law and television and radio stations no longer needed to present an opposing side in any matter of public interest.
Charles Koch and billionaire friends organized and funded dozens of tax-exempt nonprofits designed to consolidate power in various ways– think tanks to influence public opinion, “grassroots” movements to vehemently and vocally oppose government, a legal fraternity/career ladder to inculcate future lifetime judges with an extreme right philosophy, organizations to bring cases to the Supreme Court that could advancetheir cause,ending all government regulation of the super wealthy.
Citizens United v Federal Elections Commission was a big one (unlimited dark money in politics is fine). Shelby County v Holder was a big one (unconstitutional to enforce the Voting Rights Act of 1965 anymore). The recent Dobbs decision, citing medieval and 17th century authorities on women’s bodies, and their rights before the one true God, was a blockbuster (not to mention an audacious bit ofin-your-fucking-facejudicial activism). Talk about yer majoritarian tyranny...
Much of the great progress of the reactionary cause is due to the tireless efforts of a talented fundraiser, ideologue and lifetime judicial appointment maker that few Americans have ever even heard of. Here’sa short biography of Leonard Leo, the hard-right religious zealot who brought us the 6-3 Supreme Court majority. For the love of God, and His only son, Jesus Christ, literally.
The lawyers Trump is still able to hire filed a unique motion in federal court the other day related to his right to retain government papers after leaving office. The judge gave them a few days to fix their filing, since shewas legitimately confused about what they are seeking and why they are seeking it in her federal courtroom.
The 27-page filing is replete with Trump’s typical political bombast, including boasts about the power of the former president’s 2022 campaign endorsements and about the Mar-a-Lago estate itself. But it also confirmed aspects of the timeline related to the Mar-a-Lago search, including the fact that the Justice Department issued two subpoenas prior to the search — one for documents on May 11 and another for security camera footage in late June. . .
. . .“We are now demanding that the Department of ‘Justice’ be instructed to immediately STOP the review of documents illegally seized from my home. ALL documents have been previously declassified,” Trump declared.
Rupert Murdoch’sNew York Post clarified that Trump didn’t have his lawyers include that strong paragraph in his motion for a special master:
“We are now demanding that the Department of ‘Justice’ be instructed to immediately STOP the review of documents illegally seized from my home. ALL documents have been previously declassified,” Trump said in a statement on his Truth Social platform soon after the motion was filed.. .
. . .Three days after the raid, on Aug. 11, the former president’s attorneys attempted to convey a message to Attorney General Merrick Garland from Trump during a conversation with Bratt. That message, according to the filing, was:
“President Trump wants the Attorney General to know that he has been hearing from people all over the country about the raid. If there was one word to describe their mood, it is ‘angry.’ The heat is building up. The pressure is building up. Whatever I can do to take the heat down, to bring the pressure down, just let us know.”
You know, as you do when you want to make sure the guy knows it’s a nice little democracy he’s got here and it would be a shame if something happened to it.
In 2010 the Supreme Court decided Citizens United v Federal Election Commission, ruling 5-4 that corporations have the same right to political speech as any other person and can pay for as much constitutionally protected free speech as they like. The rationale given by Anthony Kennedy was that transparency about who was donating the money would alleviate any concerns about hidden hands manipulating American politics, since Americans would know who funded various political messages.
I’ll let Heather Cox Richardson tell this grotesque story, which was reported in yesterday’s NY Times (link above, at top):
Today’s big news is an eye-popping $1.6 billion donation to a right-wing nonprofit organized in May 2020. This is the largest known single donation made to a political influence organization.
The money came from Barre Seid, a 90-year-old electronics company executive, and the new organization, Marble Freedom Trust, is controlled by Leonard A. Leo, the co-chair of the Federalist Society, who has been behind the right-wing takeover of the Supreme Court. Leo has also been prominent in challenges to abortion rights, voting rights, climate change action, and so on. He announced in early 2020 that he was stepping back from the Federalist Society to remake politics at every level, but information about the massive grant and the new organization was broken today by Kenneth P. Vogel and Shane Goldmacher of the New York Times.
Marble is organized as a nonprofit, so when Seid gave it 100% of the stock in Tripp Lite, a privately held company that makes surge protectors and other electronic equipment, it could sell the stock without paying taxes. The arrangement also likely enabled Seid to avoid paying as much as $400 million in capital gains taxes on the stock. Law professor Ray Madoff of Boston College Law School, who specializes in philanthropic policy, told the New York Times: “These actions by the super wealthy are actually costing the American taxpayers to support the political spending of the wealthiest Americans.”
This massive donation is an example of so-called “dark money”: funds donated for political advocacy to nonprofits that do not have to disclose their donors. In the 2010 Citizens United v. Federal Election Commission (FEC) decision, the Supreme Court said that limiting the ability of corporations and other entities to advertise their political preferences violates their First Amendment right to free speech. This was a new interpretation: until the 1970s, the Supreme Court did not agree that companies had free speech protections.
Now, nonprofit organizations can receive unlimited donations from people, corporations, or other entities for political speech. They cannot collaborate directly with candidates or campaigns, but they can promote a candidate’s policies and attack opponents, all without identifying their donors.
“I’ve never seen a group of this magnitude before,” Robert Maguire of Citizens for Responsibility and Ethics in Washington (CREW) told Casey Tolan, Curt Devine, and Drew Griffin of CNN. “This is the kind of money that can help these political operatives and their allies start to move the needle on issues like reshaping the federal judiciary, making it more difficult to vote, a state-by-state campaign to remake election laws and lay the groundwork for undermining future elections.” Our campaign finance system, he said, gives “wealthy donors, whether they be corporations or individuals, access and influence over the system far greater than any regular American can ever imagine.”
Right-wing demagogues are making the same point that the Confederates made back when they were defending their constitutional right to hold other people as property and do with them as they pleased. It’s like the goddamn Civil War was never fought, or won by the forces of the Federal Union. Swastikas and Confederate flags, free speech protected under the First and Second Amendments, States Rights, home rule, local sovereignty! Here’s a beautiful short summary of the basic idiocy of the “States’ Rights” position.
Law in a democracy, (while tilted towards the wealthy and politically powerful, who can employ armies of lawyers to negotiate, wheedle and delay on their behalf, and also hire expert lobbyists to rewrite laws that are disadvantageous to them), is the final word on what is legal or illegal and who is accountable to the rest of us. That’s why we often hear “the rule of law” used as a synonym for democracy.
Clearly there are multiple tiers to our justice system, and the rich and powerful are not generally debased by being subjected to the strict laws that are generously applied against the lower and criminal classes. Here, we make no distinction between… you know the rest. Still, our laws, and justice system, which apply to all citizens, residents and non-diplomatic visitors, are what protect our American experiment in democracy.
In autocracy, the autocrat can change and bend the law at will. Crooks that help the autocrat are given positions of power, immunity from prosecution, sprung from jail if convicted, pardoned and restored to positions of power. Autocracy, as scholar of fascism Ruth Ben-Ghiat points out, is always enabled by a conspiracy of powerful criminals who ruthlessly serve the autocrat. Note that the rule of law applied in Nazi Germany also, though every judge, prosecutor, and defense lawyer was required to be a Nazi party member and the law was whatever the Führer said it was on any given day.
Here in the USA, even a judge vetted for loyalty to a political philosophy (membership in a legal fraternity with a strict view of how the law needs to be changed) and appointed by a president with a bent toward authoritarianism, will not be able to rule for his benefactor without evidence. The courts, (until you reach the Supreme Court, constrained by neither ethical rules nor weighing of actual evidence, and where a medieval scholar can be cited as unappealable proof that abortion is murder), are bound by the rule of law, limited in their decisions by the weight of the actual evidence presented.
In a case I followed, Trump, et al v. Boockvar [1], one of hundreds of lawsuits brought by Trump for President, Inc. and the RNC prior to the 2020 election, in a concerted attempt to suppress Democratic mail-in and drop box votes, a young Federalist Society judge, J. Nicholas Ranjan, appointed for life by the plaintiff himself, ruled that evidence of massive potential voter fraud and “vote dilution” and all the rest of the claims Trump made against Pennsylvania Secretary of State Boockvar must be presented. He then ruled that the evidence presented, hundreds of pages of printouts of opinion pieces by Breitbart, FOX and the like, did not satisfy the legal definition of evidence of concrete harm. In dismissing the case, he wrote more than a hundred additional pages explaining the legal rationale for every one of his decisions and detailing the authorities he relied on, for the benefit of the federal appeals court he wrote was likely to get the case. He made his decision appeal-proof, basically.
A great day for the rule of law and the burden of proof. Here’s a link to the case https://casetext.com/case/donald-j-trump-for-president-inc-v-boockvar-3 and I suspect you’ll be as shocked as I was to scan, at the top of the judge’s long decision, the list of hundreds of people involved in litigating a case that went on for months before being dismissed for lack of evidence. There is also, naturally, a scary wink at the Federalist Society’s best hope for changing the nature of our multi-racial democracy, another seed of the Independent State Legislature “Doctrine” [2]. This “doctrine” is teed up for a 6-3 decision next term on whether state legislatures have the ultimate authority to decide who won federal elections in their state, no matter what “majoritarian tyranny” might have to say at the so-called voting booth.
In a court of law (outside of the current Supreme Court), you need proof of yourlegal injury or your case gets dismissed. In the court of public opinion, proof is not necessary for angry partisans who believe the worst of their enemies automatically. You need to keep righteous outrage boiling and have people willing to physically threaten those who insist on the, like totally unfair, “rule of law.” What to make of an outrageously unfair law like the one below? Makes you want to holler, if you support the man millions are vindictively hoping will be finally prosecuted for it, and many other crimes he appears to have serially committed:
18 U.S. Code § 793 – Gathering, transmitting or losing defense information
(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—
Shall be fined under this title or imprisoned not more than ten years, or both.
(g) If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.
and, most unfair of all, if you make money by legitimately selling so-called national security documents, that you honestly believed you owned and had every right to sell, or do whatever else you wanted with, they try to “legally” confiscate the money you made! On top of fines and prison time!
(h) (1) Any person convicted of a violation of this section shall forfeit to the United States, irrespective of any provision of State law, any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, from any foreign government, or any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, as the result of such violation.
Take names (agents who conducted the partisan search and illegal seizure, the judge who allowed it, and their families!) and… let’s just say “kick ass”. Shame if anything happened to this nice little democracy of yours. If you’re thinking of weaponizing the Secret Service (SS) innocently not informing members of Congress of on-line chatter calling for their murder, by name (hi, Nancy), on January 6, until hours into the riot — think again!
[1]
In Donald J. Trump for President, Inc. v. Boockvar, No. 2:20-cv-966, 2020 WL 5997680 (W.D. Pa. Oct. 10, 2020), the Western District of Pennsylvania dismissed a legal challenge to election guidance given by the Secretary of the Commonwealth of Pennsylvania regarding manned security near absentee drop boxes, performing of signature comparisons for mail-in ballots, and a county-residency requirement for poll watchers.
[2] from Ranjan’s decision:
But the job of an unelected federal judge isn’t to suggest election improvements, especially when those improvements contradict the reasoned judgment of democratically elected officials. See Andino v. Middleton , ––– U.S. ––––, 141 S.Ct. 9, 9–10, 208 L.Ed.2d 7, (Oct. 5, 2020) (Kavanaugh, J. concurring) (state legislatures should not be subject to “second-guessing by an unelected federal judiciary,” which is “not accountable to the people”) (cleaned up).
Donald J. Trump for President, Inc. v. Boockvar, 493 F. Supp. 3d 331, 343 (W.D. Pa. 2020)
Rand Paul (R-Ky) is an immense, reeking pile of excrement, and I say that with all due respect to prickly, eternally aggrieved Doctor Paul. He asked today how we know the FBI isn’t busy planting evidence, adding incriminating evidence to the boxes seized at Mar-a-Lago, how do we know the DOJ isn’t a bunch of liars? That said, his recent attack on the 1917 Espionage Act is not nearly as crazy as, say, his ongoing personal war with Anthony Fauci, orhis generally paranoiac worldview.
The Espionage Act, as Paul points out, criminalizes certain forms of dissent in a way that offends the Constitution, the First Amendment specifically. The strict wartime law certainly needs to be looked at carefully and rewritten much better than its current form. The same could be said about Nixon’s 1970 Controlled Substances Act and other laws that are still on the books, laws that were made primarily for political purposes and that we can fairly conclude outlived their ugly origins.
So fine, Rand, let’s not prosecute Mr. Trump pursuant to the Espionage Act. Obstruction of justice fits Trumpie and his gang much betteranyway.
Fair and balanced, two equally strong opposing spins on every story. Particularly when an honest former president is totally cooperative with every ugly partisan witch hunt. Chuck Grassley for the totally innocent former president.
The Espionage Act of 1917 (extended by the Sedition Act of 1918), mentioned on the FBI search warrant for Mar-a-lago, is one of the most hastily written and draconian laws in the American federal criminal code. Let’s concede that there are matters of vital national security that every nation keeps top secret and that laws need to be in place to protect deadly state secrets, to avoid nuclear war, for example. The Espionage Act covers those things, but quite a bit more, and in its present form, is a nightmarish legal quagmire in many respects to anyone charged under it. For one thing, there is virtually no defense available, the First Amendment, for example, is not a viable defense.
The Espionage Act, (full name: An Act to punish acts of interference with the foreign relations, and the foreign commerce of the United States, to punish espionage and better enforce the criminal laws of the United States, and for other purposes) was passed two months after the US entered World War One against Germany. It was designed to criminalize dissent against a deliberately promoted war in Europe that over a hundred years later nobody can untangle the reasons for, except that a lot of money belonging to the richest men in the world (and loaned to Britain and France) was riding on the roulette wheel of the outcome of this war of colonial superpowers. Woodrow Wilson unleashed a massive, modern advertising blitz to sell the “war to end war” and “the war to make the world safe for democracy” to initially skeptical Americans, who eventually signed up for it in a fervor of calculatedly stirred patriotic passion. Anyone with any influence who was publicly critical of Wilson’s drive to war became an internal enemy, subject to the harsh justice of the Espionage Act.
The law made it criminal to give “aid and comfort to the enemy” by, for example, making public statements calling into question the government’s overriding national interest in prosecuting a war, for any reason imaginable. This broadness was included specifically for the purpose of making sure the United States entered and remained in this war on the side of the Allies (who owed the wealthiest Americans an untold fortune by the middle of the war, a fortune that would be lost if Germany won). The Espionage Act made otherwise First Amendment protected free speech a criminal offense, akin to treason, in time of war. It prohibits “any disloyal, profane, scurrilous or abusive language about the form of government of the United States… or the flag.”
The devilish genius of this statute is that intent is not an element of the crime under the Espionage Act, all you have to do is anything that prosecutors can argue gave aid and comfort to the enemy. That’s why Julian Assange is on the verge of suicide, because he’s facing life imprisonment under this law where his intention in making public what he considered matters of grave public concern, such as video proof of at least one war crime, an aerial attack by a US helicopter crew against unarmed noncombatants in Iraq, cannot be introduced as part of his defense. Edward Snowden, same deal, no matter how strong a case he can make for the immense public importance of his disclosure of vast secret government surveillance of American citizens, under the Espionage Act his intentions, even the actual effects of his disclosure, are 100% irrelevant to his guilt or innocence.
It is a unique and brutal law, which, in its day, put many critics of the “war to end war” in prison. Popular American Socialist leader and presidential candidate Eugene V. Debs was convicted and sentenced to ten years during World War I for charges under the Espionage Act. It is used periodically (though very rarely) as a power move to chill dissent. I personally don’t forgive Obama for deploying it many times (he set the post World War One record for Espionage Act prosecutions) against journalists and others who could fairly be called whistleblowers. It should be removed from the books, or dramatically improved, but while it is good law it is the perfect law to prosecute someone who keeps denying he has any intent to ever do anything except be perfect and a persecuted savior of the people who are under threat from so many sick and dangerous enemies, it’s unbelievable!
gratuitousblahg 