"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."

Make Corporations Full Citizens

After the American Century #207

In American law the idea developed that corporations ought to be considered individuals – or persons. This idea makes a certain sense if narrowly interpreted. For example, a corporation, like a person, can be governed by the same laws regarding contracts. The corporate “person” could also be sued for liable. But in a revolutionary ruling last week, the United States Supreme Court decided that corporations also have the right to free speech and are protected by the Bill of Rights. The Court might have ruled far more narrowly but instead went out of its way to declare that corporations may advertise freely and directly in political campaigns. (Logically, the Court should also have given corporations the right to vote in elections, but perhaps it is saving that decision for another time.)

In the interest of making corporations into better fellow citizens, here are specific proposals to help them achieve a fuller humanity, since that is what the Court clearly desires.

1. Slavery being outlawed by the Constitution, it therefore should be illegal for one corporation to own another corporation. Holding companies clearly are a modern form of slavery that must be eliminated.

2. Hostile corporate takeovers must henceforth be regarded as acts of aggression that are punishable as crimes. A hostile takeover of a corporation must be considered a form of kidnapping, in some cases followed by murder, and punished accordingly.

3. Corporations that close down should be subjected to the same laws of taxation as the estates of deceased individuals. As it is now, companies can more resources around, closing down one company and opening a new one as often as they wish, without being subject to the taxation (and in effect the audit) imposed on a human being’s estate.

4. Since human beings are not immortal, it seems only fair that corporations be declared legally dead every 60 years (this being the maximum length of most person’s adult life). This death could be followed immediately be corporate rebirth, but only after paying the estate taxes.

5. Corporations should be punished for murder in the same way that people are. If they want to be considered persons, then they cannot pick and choose which legal obligations they want to assume. At present, when a corporation pollutes the air or water and as a matter of statistical certainty, makes some people ill and causes others to die, the “normal” practice is to fine them and to force them to pay compensation to the victims. This is not right, as it allows a wealthy “person” to substitute a cash payment for imprisonment. Real people cannot do that, why should corporations be allowed to get off? The people who give themselves those big corporate bonuses and stock options must also now be held criminally liable for the corporation’s behavior if they accept the payments.

6. The old idea of the corporation included the provision that people who invested in them had limited liability. That is, they could lose only the money originally invested, but had no personal responsibility in case the corporation ran up huge debts. In the nineteenth century, when corporations first were becoming a common way of organizing a business, many ordinary people protested. It seemed unfair that an ordinary grocer or carpenter was fully liable for his actions, while a vast corporation that owned many grocery stores or built many houses had limited liability. Clearly, now that the Court in its infinite wisdom has ruled by a vote of 5-4 that corporations have political rights, it follows that they can no longer claim limited liability. If they want to claim the rights of people, then they muse assume the obligations of people. Alternately, one would have to extend the same right of “limited liability” to all Americans, not just corporate Americans.

Now that the Court has ordered us to welcome corporations into full membership in political and civil society, the essential thing is to make sure that they take on ALL the obligations of citizenship.

Sonia Sotomayor: Superbly Qualified

After the American Century

President Obama has named Sonia Sotomayor as his first nominee to the Supreme Court. It is a good choice. Many are saying it is a good choice because she is a woman, because she is Hispanic, because she is in favor of affirmative action, and because she has risen from humble origins, making her personally aware of the hardships faced by the poor in American society.

This is all well and good, but I applaud her nomination for a different reason: because she has the right credentials. Sonia Sotomayor is very bright. She went to Princeton on a scholarship and graduated summa cum laude. For those less familiar with the American education system, this means that she was at the absolute top of her class, receiving high grades in a wide range of subjects as part of a liberal arts education. Then she went to Yale law school, where she again excelled, becoming an editor of the law journal. Even to make law review at all would have been a great accomplishment, but to be selected as an editor means that she was judged to have the capacity to grasp a wide range of legal issues and to prod some large egos to work together. All of that bodes very well for a future Supreme Court justice.

In short, I am tired of hearing that someone will be good at a job because they are of a particular gender or social background. Relevant? Absolutely. The decisive factor? No. Want proof? Consider Clarence Thomas, an African American who rose from humble origins to become a mediocre justice (at best), appointed by George Bush, Senior. Or that pathetic female nominee, Harriet Miers, the evangelical Christian tort lawyer that George Bush Jr nominated but had to withdraw because even his own party could not stomach her. We need smart, hard-working justices, not party hacks who provide the illusion of diversity. Most of the issues that confront the Supreme Court are not about abortion or race, but about extremely complex legal problems, that have to be understood in terms of the continuing interpretation of the Constitution during the last 220 years. I want to see people who have exception talent and also worked exceptionally hard, and so graduated summa cum laude on the Court. Sonia Sotomayor is one of those rare people.

Just as importantly, Sonia Sotomayor has years of practical experience. She has worked in a district attorney's office, prosecuting cases of theft, murder, robbery, rape, and child pornography. She also has worked as a lawyer in private practice, and she knows a good deal about intellectual property law, which is a burgeoning area where many cases are likely, because digital technologies demand new interpretations of the legal tradition. Most importantly, she has been a Federal Judge, nominated first by that notorious radical George Bush Senior, and later promoted to her present position in at the United States Court of Appeals by Bill Clinton.

The Senate approved her elevation to this new position by a more than 2 to 1 majority, which in 1998 included many Republicans, notably Orrin Hatch, hardly a lefty or a liberal. Conceivably the Republicans will try to mount a challenge to this appointment, but Sonia Sotomayor probably is more intelligent than any of the people who will be questioning her at the confirmation hearings. If the Republicans want to get something out of this, they probably ought to celebrate the fact that Sonia Sotomayor entered the judiciary because a Republican president appointed her. The recent Republican project of self-destruction (by appealing to the rabid base and alienating moderates) may not be quite over yet, however.

However, it also seems likely that, unless some fantastic revelation comes out in the hearings, Sonia Sotomayor will soon be on the Supreme Court. She deserves to be there because of her excellent education and experience, and not merely because she is a woman or a member of a racial minority. And since she is 54, one could hope to see her on the bench for two decades.

The Forgotten Issues

After the American Century

The endless Obama-Clinton duel has now devolved into a contest of errors. Hillary made a huge one recently, by talking about the assassination of Robert Kennedy in 1968 as an example of how campaigns may be decided in June. Was she saying, stay in the race, because your opponent might get whacked? Surely not, everyone agreed, after she apologized, saying she "misspoke." Perhaps the worst part of such episodes is that they take attention away from the issues. Why talk about the people dying in Iraq or the soaring price of gasoline or the thousands of foreclosures, when you can discuss pratfalls and stupid remarks?

There are real issues in this campaign, however, even if the media often reduce it to a popularity contest that focuses on who is the best bowler or who said something idiotic last week.

Will the US stay in Iraq until at least 2013 (McCain's plan) or for as short a time as possible (Obama's plan)?

Will the Bush tax cuts for the rich become permanent (McCain's plan), or will the US return to something like the tax arrangements of the 1990s? To put this another way, will the US again start to pay off its national debt, or will it assume it can keep borrowing money from foreign creditors forever? Also indirectly involved in this issue is whether the dollar will be backed by a government that lives within its means and that can protect the dollar from falling further?

Huge balance of payment problems are not a good long-term economic policy, either. Will the US continue its massive oil imports, or will government force automakers to produce more fuel efficient cars? Students have built experimental cars that can run an astonishing 300 kilometers to a single liter, roughly 600 miles to a gallon! But neither the American SUV mad consumer nor Detroit is going to get there without some leadership. The Republicans have had eight years to provide it and failed.

Will the next appointments to the Supreme Court further tip the balance in a conservative direction? McCain is now on record as being a firm opponent of all forms of abortion, and if elected would likely be able to tip the balance on this issue.

Will the US really embrace efforts to curb global warming? McCain is better on this issue that Bush, rhetorically, but the Republican Party is not. The only real chance for the US to take a responsible role on this issue is if there is a Democratic Congress and President.

Will the next president be beholden to lobbyists who have donated to his campaign (McCain) or will he only have received support from ordinary voters (Obama)? This has implications on a host of issues.

Will the next president try to solve world problems by using the military (McCain) or by "soft-power" and diplomacy (Obama)? McCain evidently agrees with Bush that negotiating with an enemy is a bad thing, a sign of weakness. Obama does not want to be another cowboy president.

Finally, McCain now backs the use of some forms of torture, which is quite astonishing in his case, because he was tortured himself while held as a prisoner of war in Vietnam. Obama unequivocably rejects the use of torture. This is a serious issue, because recent news reports indicate that the use of waterboarding and other forms of torture have been more widespread that previously disclosed. The American military appears to be infected with this undemocratic practice, which is appropriate for sixtenth century witchhunts but not for any civilized nation today. McCain's treason to his own earlier convictions on this issue makes him a deeply problematic candidate. If he can reverse himself on torture, one can only ask, does he believe in anything?

Of course, none of this is as much fun as hearing about a tactical mistake or silly remark made by a candidate. But these and other issues are what the campaign should be about. Looking at these contrasts between McCain and Obama, I find no reason to support the Senator from Arizona. I am not aware of a single issue where his positions appear to be the wise choice. On the contrary, McCain's election could easily be a disaster even greater than the Bush Presidency. It may be hard to believe that something worse is possible. But it is.

What is at Stake in November?

After the American Century

The race between Clinton and Obama should not distract from the fundamental oppositions between McCain and the two Democratic candidates. Party divergences are so fundamental that this election seems to be a defining national moment. Count on the Republicans to try to find some symbolic controversy to distract the voters, such as respect for the flag, prayer in schools, gay marriage, and the like. One can only hope the American people will not be easily distracted. Here is what they should be thinking about.

One. The Bench. Will a conservative, strict-construction of the Constitution be cemented more firmly in place, with four more years of Republican judicial appointments? This concerns not only the Supreme Court but the many appointments to the other Federal courts as well. It is not just about whether abortion will continue to be legal, but whether the courts will agree to hear cases dealing with social inequality, racial discrimination, and free speech, broadly defined. In a worse-case scenario, conservative judges (whose terms to not expire until they decide to retire) could become the dominant force for a generation. A conservative bench is potentially dangerous after eight years of Bush's attacks on civil liberties, along with continual attempts to place both the President and the Vice-President above scrutiny and the rule of law.

Two. Will the destabilizing tax cuts that Bush enacted become permanent, or will more progressive taxation return? Under the Bush plan, the rich keep getting richer and the national debt grows, the middle class and the poor lose ground, and the next generation gets the bill. McCain has pledged to keep the Bush cuts, while the Democrats want to return to the system that served the nation so well in the 1990s. Recall that from 1992 until 2000 the economy grew, the middle class did not lose ground, and the national debt was rapidly paid off. The Republicans have evolved into a party of fiscal irresponsibility. Under both Reagan and the Bushes, they have run up huge deficits and given the wealthy tax breaks. In effect, they keep imposing a tax on the next generation. That was the central issue that got Ross Perot to run in the election of 1992, siphoning off enough Republican votes to get Clinton elected. However, the Republicans shamelessly keep calling the Democrats "tax and spend liberals". This rhetoric worked a generation ago, but since 1980 have become "tax and spend conservatives." The difference is that their spending is for the military rather than for social programs.

Three. Will the Iraq war continue without any end in sight (McCain) or will the US seek to negotiate its way out of the mess Bush created there (Clinton and Obama). Back in 1968 and again in 1972 the Republicans railed at any suggestion that Vietnam could not be won, and they stuck to their guns for six years after Nixon came in. The Republican "plan" for Iraq now seems like "deja vu all over again." Remember "Vietnamization?" The US is now spending billions on building up a new Iraq army and police force with the same idea in mind. The Democrats want to end the conflict and put the money saved into social programs, notably medical care. How much is Iraq costing? About $15 million an hour.

Four. Will the US fix its medical system? Costs are out of control, malpractice insurance drives some doctors out of business, patients in rural areas are underserved, employers have begun to eliminate health care from worker benefits - the list could go on, but this is a national emergency must be solved. It is a terrible problem at the personal level, but failing health care also makes the US less competitive in the world. The Detroit automobile companies spend as much money on health care for their workers than they do for steel. In many other nations health care is paid by the state, and corporations do not have that expense.

Five. Will corporations be regulated? The 9/11 attacks saved Bush from a major investigation of his close financial and political ties to ENRON. Its executives were frequent guests at the White House and advised Bush and Cheney on energy policy. Yet that corporation's rapacious and illegal activities cost California billions of dollars, and such predatory behavior emerged again in the behavior of the mortgage industry. Likewise, this government cut back funding for inspectors in many areas, making actual enforcement of the laws difficult. The Republicans are so in thrall to the special interests that they no longer protect the public. Only a few Enron executives were punished even lightly for their felonies. If the Republicans stay in the White House, they will continue to resist government oversight of corporations and environmental inspections will be under-funded.

Six. Energy policy. The Bush government has squandered eight years when the US could have moved toward sustainable energy use. With two former oil executives in the White House, the nation fell behind Europe and Japan in creating the next generation of energy systems, notably wind and solar power. For those curious about what is possible, see Scientific American's article on how solar power alone could supply most of the US electricity needs. ("A Solar Grand Plan," January 2008). Such creative thinking has been anathema in Washington. Republicans have resolutely hung on to a national energy model from c. 1950. For example, they have resisted for 25 years higher mpg requirements for cars, and Detroit makes gas-guzzling automobiles that are not competitive in the rest of the world. The Republicans should accept responsibility for those thousands of jobs lost in Michigan and Ohio. (There is a silver lining for some Republicans personally: Exxon-Mobile's profits for the last quarter topped §100 billion.) This election will determine whether the oil industry will continue to hold back economic development and have an undue influence on foreign policy, and whether the US will actually do anything about global warming.

Those are all vital issues for any candidate. After winning ten straight states, it does seem that Obama is the more likely candidate. At his Tuesday night rally in Houston, attended by 20,000 people, tickets were free but in such short supply that some were scalped for $100. I don't think anyone is paying that kind of money to see Hillary. Yet whether the Democrats ultimately choose Obama or Clinton, both oppose John McCain on all these issues. Either would be far, far better than McCain.

For more on "The Bush Economy" see this blog for Dec. 12.