"The Constitution does not shield a former President from answering for criminal and treasonous acts"

After the American Century

The Supreme Court has ruled that the President of the United States cannot be held legally accountable for his actions as head of the government. This is an absurdity in a democratic nation, but more to the point, it violates the intentions of the founding fathers of the United States. The fought a Revolution to escape from the rule of the King of England, and they had no desire to make the president a replacement monarch.

But this week. the Court decided that presidential immunity applies to all official acts of the president, including acts that discredit and interfere with elections, as well as actions that encourage mob violence against Congress.  I urge everyone to read the decision in its tortured and incompetent reasoning, but here are the main points, as summarized by the justices themselves: 

A federal grand jury indicted former President Donald J. Trump on four counts for conduct that occurred during his Presidency following the November 2020 election.  The indictment alleged that after losing that election, Trump conspired to overturn it by spreading knowingly false claims of election fraud to obstruct the collecting, counting, and certifying of the election results.  Trump moved to dismiss the indictment based on Presidential immunity, arguing that a President has absolute immunity from criminal prosecution for actions performed within the outer perimeter of his official responsibilities, and that the indictment’s allegations fell within the core of his official duties.  The District Court denied Trump’s motion to dismiss, holding that former Presidents do not possess federal criminal immunity for any acts.  The D. C. Circuit affirmed.  Both the District Court and the D. C. Circuit declined to decide whether the indicted conduct involved official acts. 

Held: Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority.  And he is entitled to at least presumptive immunity from prosecution for all his official acts.  There is no immunity for unofficial acts.

On the following page: "The Court thus concludes that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority."

This is rank treason. The Supreme Court's decision suberts and undermines the Constitution, giving unlimited power to the chief executive, making him immune from the checks and balances envisioned by the architects of the federal government. Given this decision, neither Congress nor the Courts have any power to prevent crimes by the cheif executive. They have left a gaping hole in their decision, failing to define what are official acts as distinguihsed from unoffical acts. The specific case involves an attack on Congress on January 6th, 2021.  Can a mob attack Congress, encouraged by the president in a speech immediately before it occurred,  and these proceedings be considered an official act? Apparently, the justices think so. The six justices who made this decision have lost credibility. They have severely undermined the reputation of the Court. They have created legal sanctions for dictatorship. 

The majority who made this decision have also discredited their own institutiont. Why should anyone respect their opinions in the future? There is a bit of satisfaction in knowing that the six justices who signed the decision have inscribed their names in history as incompetents who failed in their duty to uphold the Constitution. They will be reviled forever by historians and legal scholars, and Chief Justice Roberts in particular will go down as the worst head of the Court since it began. If the nation survives his tenure, it will be no thanks to him.

In contrast. history will honor the three dissenting justices.

"JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN and JUSTICE JACKSON join, dissenting. 

Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency.  It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for “bold and unhesitating action” by the President. . .  the Court gives former President Trump all the immunity he asked for and more.  Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent."

Reagan vs Trump on the value of NATO

After the American Century

NATO is under attack. Not from Russia but from Donald Trump. He is the first American president ever to suggest that US allies ought to be attacked. He is the first to openly encourage Russia to make such an attack. If he becomes president, he will drive Europe away from the US, increase the danger of a wider war in Europe, and undermine the rule of law internationally.

Trump is a disgrace to himself and to the Republican Party. Ronald Reagan would not vote for anyone holding such views.

This is what Reagan said forty years ago, on the 35th anniversay of NATO's establishment:

"Throughout its history, the NATO Alliance has been challenged by the military power and political ambitions of the Soviet Union. Yet, in every decade, the nations of the Alliance have consistently pulled together to maintain peace through their collective strength and determination. On the basis of that strength and unity, the nations of the Alliance also have taken the initiative to seek a more constructive relationship with the Soviet Union.

"Over the years, NATO has grown from its original twelve members to include Greece, Turkey, the Federal Republic of Germany, and, most recently, Spain. It has demonstrated a capacity to adapt to evolving political and security challenges and to meet the changing needs of its members. The Alliance's commitment to collective security has been sustained through full democratic respect for the sovereign independence of each member.
I am proud to rededicate the United States to the ideals and responsibilities of our Alliance."

President Ronald Reagn, March 6, 1984


Why do Republicans honor the memory of Reagan and yet support Trump. Have they not lost their way? 

Intelligence briefings for Donald Trump?

After the American Century

   President Biden said two days ago that he did not think it wise to continue providing intelligence briefings to Mr. Trump, now that he is no longer president. Since it is well known that Trump did not regularly read those briefings when he was president, this seems wise. Look at the benefits:

     - it will save paper, which is good for the environment

    - an expert will not waste time shortening and simplifying reports down to Trump's level.

    - Trump's name will not be juxtaposed with "intelligence." This is the guy who, asked what books he would recommend, declared, ""The Bible blows them away. There's nothing like it, the Bible."

    - Trump will not accidentally or intentionally disclose sensitive information, such as his cures for  COVID-19 or his advice on wearing a mask

    - Trump can speak freely if he is not encumbered with facts. This will ensure that talk show hosts and stand-up comedians continue to receive fresh material.

    - Trump will not be able to use top secret information when investing in the stock market. Insider trading has become something of a Republican speciality. However, they should not be spoon fed insider information, but forced to find it for themselves. 

   - Trump cannot share information with his friends overseas (no names please! but some of them live in North Korea, Moscow, and Brazil.)

    - Trump can stay inside his bubble, where the crowds at his inauguration will always be the biggest in history, where his cures for COVID 19 will remain effective, where his presidency was really, really great, and where his bankruptcies and scandals do not exist. If he gets no briefings,then his self-delusions will remain unspoiled, and he will be a happier man.

Trump has always preferred his own facts to anyone else's, so why disturb him with expert opinions? 

Three possible results of the Trump Impeachment Process

After the American Century

"Intolerance," by Maurice Sterne, 1941 

US Department of Justice, Main Library, Washington

Photo: Carol Highsmith

The Law: The Constitution dictates that only if two-thirds of the Senate find a person guilty can they be convicted of an impeachable offense. The Senate cannot fine or imprison a guilty party. The only penalty it can impose is a ban from holding public office. Other punishment is left to the courts.

Scenario 1: All the Democrats and at least 17 Republicans vote against Trump, making him the first president ever to be found guilty by the Senate. Richard Nixon resigned rather than face such a vote. Andrew Johnson was almost impeached and convicted by a Republican dominated Senate in 1868. There were 35 votes against Johnson (guilty) and 19 for him (not guilty). The Republicans needed just one more vote, but did not get it. Historically speaking, a president has never been convicted. The founding fathers intentionally made it difficult, requiring not a mere majority but a very large majority, in order to avoid impeachment becoming a matter of mere partisanship. 

    For Trump to be convicted, additional evidence will need to be presented during the trial, evidence so damning that it would force Republicans to repudiate him. Given the several week delay in starting the proceedings, it seems possible that Democrats might find such a smoking gun. For example, there might be a phone call or an email that links Trump directly to those who invaded the Houses of Congress. Conviction would divide the Republican Party into two irreconcilable camps, in the short term, but as happened after they repudiation of Nixon, the GOP would be in a position to revive and move on. This is a bitter pill for Republicans, but it the best option for them in the long run, and also for the nation.

Scenario 2: A majority of the Senate votes to convict Trump, but that majority falls short of 67 votes.  Instead, he could be taken to court on related charges and found guilty. For example, he might be charged with incitement to riot and being an accessory to the murder of one or more of the people who died in the attack on Congress. In addition, there are other court cases awaiting Trump, notably in New York State. A court conviction of any kind would weaken Trump and keep Republicans in turmoil, and might lengthen the struggle for control of their party until the 2024 elections. Normally, the party in power loses some seats to years after winning the presidency, but if the Republicans are internally at war, the Democrats would have a chance to win additional power the 2022 Congressional elections. 

Scenario 3: Trump is neither convicted by the Senate nor convicted of any crime in court. He could present himself as a victim of left-wing conspiracy. His supporters would feel righteously justified, and his control of a majority of the Republican Party would continue. The result, Trump will re-energize his base, while the country remains deeply split.

Which possibility is most likely? 

Scenario 1 is not very plausible, but it is Plan A for both Democrats and few Republicans who want to escape Trumpism. However, there are not 17 Republican Senators who look likely to convict Trump. Unless dramatic new evidence is presented to the Senate.

√ Scenario 2 is the most likely. In that case, Trump will only lose some support because of the impeachment trial and lose a bit more after being convicted of economic crimes, such as fraud, tax fraud, or money laundering. (There are apparently many other possibilities, too.) This would keep Republicans split and be good for the Democrats in 2022.  

Note added 15 Feb: This is indeed what happened.

Scenario 3 is possible, but not likely. Democratic Party leaders have a good idea of what court cases Trump will face after his trial in the Senate.  It seems exceedingly likely that he will face prosecution, and for that reason, the Democrats can take the high ground and demand an impeachment trial before the Senate, knowing Trump will soon be tied up in more litigation afterwards.

Whatever happens, the punishment of Donald Trump has, in all likelihood, only just begun,

Impeachment and the Republican Party

After the American Century

It is not only Donald Trump who is on trial. The Republican Party spent four years overlooking his many illegal actions and bullying tactics. They will also be tested, and unfortunately they will probably disgrace themsleves. For they surrendered to Trumpism, with only a few exceptions. They wanted power more than they wanted truth. Now the 50 Republican Senators will have to decide if they care about how they will be remembered. Historians will not be kind to those who continue to support Trump,, who say that the election was rigged, who claim Trump really won, who pretend against all common sense and a great deal of evidence that the attack on the halls of Congress had so little to do with Trump that he is not responsible for it.  

Liquidation Sale, Trump Taj Mahal Casino in Atlantic City

Now I write this as someone who grew up in a Republican family, and whose father and mother were both elected as Republicans. My father was elected to the town school board and my mother was elected a Justice of the Peace. That was back in the 1960s, when many Republicans, including my parents, supported Civil Rights, full equality for women, and scientific research. My mother taught biology and my father taught engineering. They would be horrified to see what the Republican Party has become.

When Trump goes on trial, the big question is not whether or not he is guilty. He has committed so many crimes that whole books will be published analyzing them. The real question is whether the Republican Party can separate itself from his brutal tactics and his inability to tell the truth. 

Does that sound like an exaggeration? The Washington Post has made a list of the lies that Trump has told. They found that the number of  lies increased with each year.  Trump averaged six false statements a day during 2017, 16 a day in 2018, 22 a day in 2019, and 27 a day in 2020. By election day he had made about 25,000 false statements during his time in office, creating an alternative reality for this followers.

Many of these lies were exaggerations. The most common one was that the American economy was “the best in history.” By 2020 this escalated to the repeated claim that it was “the best economy in the history of the world.” The second most common lie – 262 times – was that the border wall with Mexico was being built. In fact, only a few miles of new wall had been built by May 2020. Fragments of existing barriers were rebuilt, but they were hardly impregnable. In 2020, Trump repeated 38 times that the wall was almost completed. The third most common lie was that his tax cut was the largest in American history, but economists calculated that it was the eighth largest, and not even one third as large as Ronald Reagan’s tax legislation in 1981. Trump did not explain to his crowds that the lion’s share of his tax cuts were for the wealthiest 2 percent of the population. (For more on Trump's presidency, see The United (and Divided) States,  especially the final three chapters.)

Lying became the basis of Trump's campaign and his most common form of attack on other people. Of course, the biggest lie was that he had won the election, but it had been stolen from him. It appears that after the election he was unable to separate that lie from the truth, a sad development for him, and a catastrophe for his followers and the Republican Party, which in the fall of 2020 was fast becoming more a cult than a political organization. 

When the impeachment process begins in two weeks, the central question will be whether the Republicans will continue to live a lie, or whether they can begin the harder process of acting like a political party again, a party that respects education and science, a party that argues from facts rather than invent convenient "alternative facts," a party that does not embrace extreme right-wing zealots who think it is patriotic to attack the Congress, or, in short, a party that people like my parents would recognize and want to be part of.  As for me, I gave up on the Republicans in the Richard Nixon years, though there were some honorable men and women among them. That was decades ago. It has now become a threat to democracy. May it find a way to reform itself. 

But don't hold your breath. The Trump brand is as bankrupt as his casino hotel in Atlantic City, but more than 60 million Republican voters could not see it.

The Trump Denial Regime

After the American Century

It seems possible that President Trump has had a mental breakdown. Who can offer a rational explanation for his behavior since he lost the election? He is hiding from the press and public, while sending out odd messages on Twitter. He really seems to believe that he won the election that he lost.  He appears to be in the grip of a conspiracy theory that seems to be a paranoid misreading of reality. He lost the popular vote by more than 5 million votes and he lost the electoral vote as well. Some commentators have said that he is "in denial," as if this is all right. 

It is not all right for the commander in chief to sulk for weeks after losing an election. It is not all right for him to mislead millions of Americans with claims of election fraud that are unsubstantiated by any evidence. He has lost all the court cases brought so far, and most of the lawyers who worked on them have withdrawn their services. Presumably, they realized that they were being used as part of a vast deception. 

It certainly is not all right to pretend that Trump is in his right mind. Millions of Americans are not at all certain that Mr. Trump is now rational or capable of making complex decisions. He gives no indication that he is performing his job as president. Quite the contrary. He is spending time playing golf but otherwise doing little more than repeating endlessly - obsessively - that he won the election. 

Meanwhile, more than 1,000 people are dying every day from the coronavirus. The President endlessly told the public that this is not a serious illness, that is was largely fake news, a bogus crisis.  Even after he got the coronavirus himself, he told his followers that it was nothing to worry about. It would cease to be a news story the day after the election, or so he said. Trump has led the public down that false road of denial, too.

The number who have died from the coronavirus in the US has already topped the death toll for the Korean War and the Vietnam War combined. The majority of these deaths could have been avoided, had the US had leadership as competent as in New Zealand, in Norway, in South Korea, or in Taiwan, all of which have had far lower death rates. But the Trump White House did not take a leadership role, it did not coordinate a national response, and it did not even give accurate information about the situation much of the time,  The Trump White House is responsible for the majority of these deaths.

In any other job, a person behaving irresponsibly would be sent to a psychological examination, and he would be relieved of his duties until he was well again. Amendment 25 of the Constitution sets forth the possibility that a president can be treated in a similar manner. In that case, the Vice President would assume the duties of the President.

Amendment 25 is not likely to be invoked, however, because the president has infected those around him with his fantasies. The White House and the Republican leadership seem to be collectively deluded in a way that is common in religious cults. No one wants to upset or offend Trump. This is the Republican Party that refused to call a single witness at the sham impeachment proceedings, in which the Senate did not allow a trial to take place. Trump the untouchable.

The Washington Post has kept a record of Trump's lies and exaggerations and has been unable to keep up with him, because he repeats the lies so often, at a rate of more than 25 a day. They estimate that he has lied 25,000 times during his 4 years in office. It seems doubtful that Trump and his millions of followers have much of a grip on reality any longer. They have heard the lies so often that they believe them all.

This paranoid president is self-absorbed, with little interest in the pandemic raging on his watch. This Republican Party is unable to separate itself from his delusions, and instead helps to spread them, creating a bubble of conspiracy theories and false accusations of fraud. The real fraud is the Republican leadership itself.  

The Republican Party will not live down this dark period for at least a generation. The United States will not regain respect on the world stage for years, either, assuming it manages to escape from this self-inflicted crisis of government. 

Who benefits from this chaos? Russia, China, and terrorists. The crisis allows all of them to construct a plausible sounding narrative, in which the United States is not really a democracy. This is the narrative of electoral fraud that Trump is selling and that the Republican Party seems unable to reject. 

Why the US Should Have Signed the Paris Climate Accords

After the American Century 

I have been studying the history of energy, especially electricity, for three decades.* In fact, I spent much of this spring studying the history of alternative energies and comparing their adoption to the history of previous energy transitions. I can say with certainty that Trump's decision to pull out of the Paris Climate Accords will look idiotic to future historians, for at least six reasons.

(1) because global warming is very real and getting worse.

(2) because many places that voted for Trump will suffer terrible flooding as the oceans continue to rise, more hurricanes as the oceans continue to warm up and more tornados, caused by the collision of cold continental air masses with much hotter air coming off the Gulf og Mexico.

(3) because solar and wind energy are now cheaper than coal or oil, as established by the marketplace.

(4) because we are in the later stages of an energy transition that is well underway, especially in countries like Portugal and Chile, where fossil fuel lobbies are weaker than in the US,

(5) because due to this decision the centers of alternative energy research and manufacturing will be less American than they might have been, with China, Germany, and other nations taking the lead;

(6) because this decision drives another wedge between the US and its European allies, weakening American leadership and credibility.

It is as if Woodrow Wilson had tried to stop adoption of the automobile in order to save the harness makers, horse breeders, and stables.

Pulling out of the climate accords cannot be done all at once, however, and this issue should be at the center of the elections in 2018 and again in 2020.

Trump is spitting into the wind of change, and the spit is already smeared all over his face.

* My books on energy history include Electrifying America (1990), Consuming Power (1998), When the Lights Went Out (2010), and American Illuminations (2018, forthcoming) - all published by MIT Press.

Who Can Replace Trump, for Campaign Comic Relief?

After the American Century

I am sad to see Donald Trump quit running for president. He would have been a miserable choice, but what entertainment we could have had! Imagine him debating other Republican wannabes. Think of all the great editorial cartoons, with his trademark bad hairpiece!

Trump is the too-often hidden face of the Republicans. Not a Bible-thumper but a nasty New York businessman with contempt for most other people. A man of equisite bad taste, he has the great virtue of not pretending. He does not put on a bland face, but gets right in-your-face. Trump would have been the perfect candidate to run against Obama, in the sense that he would both lose and represent the business Republicans, i.e. the people who run that party, even if they have trouble, sometimes, steering the gaggle of lunatics they have recruited as foot soldiers.

Nonetheless, we can only hope someone equally colorful will emerge to give the coming election some comic relief. My guess is that Sarah Palin will not be able to resist running, but there is the danger that she will make stolid Mitt Romney look intelligent and responsible by comparison.

It may be time for a groundswell of enthusiasm for the resurrection of Dan Quayle - whose gleaming stupidity gave us some of the comic high points of the 1990s. He is now just 64 years old, and the only former Vice President the Republicans have that is healthy enough to run. He ought to be out there saying silly things. This is the man who apologized to Latin Americans for not being able to speak Latin.  His immortality is assured, for he also declared "I stand by all the misstatements that I've made." Not to mention his shrewd economic analysis: "“Bank failures are caused by depositors who don't deposit enough money to cover losses due to mismanagement.” Such subtle insights no doubt explain why since 2000 he has been a member of the Advisory Board of Cerberus, an investment house.  

With Trump gone, we need Quayle back. We need to smile again.