Biden delivers. Trump is still making empty promises.
December 27, 2023
Much of the media is busy with “retrospectives” of 2023, but several important stories are developing in the last week of the year. In general, the stories relate to the ongoing efforts to hold Trump accountable for his crimes as Joe Biden continues to act as a stabilizing influence in domestic politics and foreign affairs. In other words, the stark differences between our existing president and an aspiring dictator manifest themselves every day. Let’s take a look.
Trump's brief in the appeal of his presidential immunity claim is jaw-dropping, head-scratching, and just plain silly.
The appeal of Trump's presidential immunity defense is proceeding at a blazing pace in the D.C. Circuit Court of Appeals. Trump's opening brief was filed last Friday (see Opening Brief of Defendant-Appellant President Donald Trump). Jack Smith’s brief is due this Friday (Dec. 29), and Trump's reply is due on Tuesday (Jan. 2). Oral argument will be held on January 9, 2024.
Trump's brief is—in equal measure—offensive, non-sensical, and delusional. Trump takes umbrage over the fact that the federal judiciary would presume to assert jurisdiction over the former president (or, as Trump calls himself, “President Trump”). In the second paragraph of the brief, Trump asserts:
Under our system of separated powers, the Judicial Branch cannot sit in judgment over a President’s official acts.
Hmm . . . Who remembers that time—in 1803—when the US Supreme Court invalidated an act of Congress, thereby establishing the doctrine of judicial review? True, Marbury v. Madison involved an act of Congress, but the Supreme Court has applied the doctrine of judicial review to presidential actions, as well. Indeed, Trump seems to have forgotten that time (in 2018) when the Ninth Circuit Court of Appeals ruled that his executive order denying federal aid to sanctuary cities was unconstitutional. That certainly sounds like the “Judicial Branch” can sit in judgment over a President’s official acts.
While I won’t review the jurisprudence of separation of powers in detail, suffice it to say that the very nature of the doctrine is to ensure that co-equal branches of government serve as a check on the others. Trump seeks to overturn that bedrock doctrine of the Constitution with his presidential immunity claim. Teri Kanefield said of Trump's argument, “It's laughably absurd.”
While Trump's first argument may be “laughably absurd,” his second argument is worse. Trump claims that because the Senate did not convict him on the articles of impeachment issued by the House, a subsequent criminal proceeding is barred by the Double Jeopardy Clause of the Constitution. Again, to quote Teri Kanefield,
Double jeopardy (from the 5th Amendment) says you cannot twice be put in jeopardy of criminal punishment.
The only jeopardy he faced in the Senate trial was whether he would be removed from office.
Moreover, the impeachment clause actually says that after being tried in the Senate you can be criminally charged.
It's all right there in the Constitution.
While it is tough to make predictions (especially about the future), it is reasonable to assume that the D.C. Circuit is already crafting the opinion that says Trump's claim of presidential immunity against criminal conduct is untenable.
Indeed, on Tuesday, the D.C. Circuit granted permission for officials from five prior Republican administrations to file a brief in support of Judge Chutkan’s order denying Trump's motion to dismiss the election interference case on grounds of presidential immunity.
It is reasonable to assume that the D.C. Circuit will issue an opinion within 7-10 days of oral argument. The timeline thereafter is complicated because of overlapping rules relating to periods for re-hearing in the D.C. Circuit and review by the Supreme Court. Trump will undoubtedly wait until the last minute to seek rehearing and review in the Supreme Court—but Jack Smith could (again) seek expedited review. Chances are still good that Trump will be tried before the 2024 election.
Meanwhile, the decision by the Colorado Supreme Court goes into effect on January 5, 2024.
The decision of the Colorado Supreme Court holding Trump is disqualified from appearing on the Colorado presidential primary ballot will become effective on January 5, 2024. As a practical matter, if Trump wants to appear on the primary ballot, he must file a petition for review in the Supreme Court and accompany that petition with a motion for an emergency stay of the Colorado decision by January 5.
That timing is subject to a wildcard contingency: The Colorado Republican Party is considering ditching its primary election and substituting a caucus—which would not be subject to the control of the Colorado Secretary of State. See NBC News, Colorado GOP may switch to caucus from primary after Trump ruling.
The procedural path forward is untested and unclear. But whatever happens is likely to happen before Friday of this week. Stay tuned.
Justice Thomas should recuse himself from every case involving Trump's interference in the 2020 election.
There is no indication (yet) that Justice Thomas has recused himself from the election interference case appealed from Judge Chutkan. And if the Supreme Court is presented with an emergency request for a stay in the Colorado case, Justice Thomas will again be faced with the question of whether he should recuse himself.
In an op-ed on MSNBC, Norman Eisen and Joshua Kolb argue that Justice Thomas should recuse himself under the Supreme Court’s newly adopted Code of Conduct. See MSNBC, Clarence Thomas should recuse himself from all Trump cases. Eisen and Kolb note that Ginni Thomas’s involvement in the events surrounding January 6 creates a question of impartiality:
While Ginni Thomas has defended her behavior in various ways, those justifications don’t matter under the court’s own ethics canon. The justices must recuse themselves if there is even a question of impartiality “where,” as the canon states, “an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.” Her involvement in the movement attempting to overthrow the 2020 election is unquestioned — and a rational, unbiased person would reasonably doubt her husband’s impartiality in adjudicating any of these cases.
To be clear, the test is not whether Ginni Thomas did something wrong or whether she can come up with a good argument for her husband’s impartiality. The test is whether her involvement would cause an unbiased, reasonable person to question Justice Thomas’s impartiality. We passed that threshold long ago. If the Court’s new Code of Conduct is not a sham, we should expect to see Justice Thomas note his recusal from the election interference case or the Colorado disqualification case, soon.
Don’t hold your breath.
Wisconsin Supreme Court orders new state legislative districts.
Many readers of this newsletter—and tens of thousands of concerned Americans—worked to elect Justice Janet Protasiewicz to the Wisconsin Supreme Court. In a state where elections for Supreme Court justices are routinely decided by margins of a few hundred or thousands of votes, Justice Janet Protasiewicz was elected by a margin of more than 200,000 votes (or 11 percentage points).
Justice Janet Protasiewicz’s election was viewed as a referendum on the state’s restrictive abortion laws. But the state’s gerrymandered legislative districts were also a significant issue. Last Friday, the Wisconsin Supreme Court voted 4-3 to order the Wisconsin legislature to re-draw the state legislative districts to comply with the requirement that the districts be “contiguous.” See Politico, Wisconsin Supreme Court orders new state legislative maps.
If, as expected, the Wisconsin legislature refuses to comply with state law in drawing fair maps, the Wisconsin Supreme Court will assume ultimate control over the redistricting process.
While it is too early to tell how the process will turn out, it is difficult to foresee a scenario that does not increase Democratic representation in the Wisconsin legislature.
So, to everyone who was part of this victory—Congratulations!
Oh, and the battle isn’t over yet. But Democrats have momentum and confidence. Republicans may engage in bad faith tactics to delay the fair outcome, but they have witnessed the bitter fruit of their one-party rule. They would be fools to ignore that lesson.
Foreign policy developments in the Israeli/Hamas war.
President Biden continues his personal involvement in efforts to broker a temporary cease-fire, hostage exchange, and increase in humanitarian aid to Gaza. See Biden discusses hostage release, Gaza aid with leader of Qatar. In a related development, the UN Security Council voted last Friday to increase humanitarian aid to Gaza and release all hostages. Unlike prior Security Council resolutions regarding the Israeli/Hamas war, the US did not exercise its veto power.
The final text of the Security Council resolution calls for all parties to adhere to international humanitarian law and “deplores all attacks against civilians and civilian objects … and all acts of terrorism.” The addition of that language was sufficient for the US to drop its opposition to the resolution—which again failed to name Hamas for responsibility for the October 7 terror attack.
Although the US did not support the resolution, US Ambassador to the UN Linda Thomas-Greenfield called the passage of the resolution “an important step forward” in ending the hostilities and addressing the humanitarian crisis in Gaza.
Concluding Thoughts.
Trump continued posting hateful messages after Christmas, but I will refrain from subjecting you to them. One of the few posts with any policy substance said that Trump would “replace Obamacare” with something “better and cheaper.” Hmm . . . sounds familiar: “Repeal and replace” was the mantra of Trump's first year in office. It didn’t happen—in part because Republicans never got around to proposing a “cheaper and better” replacement. If Trump had four years to unveil his cheaper and better healthcare plan, one wonders why he waited until the was out of office for three years to reveal that he has been sitting on a brilliant plan all along! Or perhaps he’s not telling the truth?
It would be funny if it weren’t tragic. Trump talked about “infrastructure week” for four years, but it was Joe Biden who finally passed infrastructure legislation—the largest investment in infrastructure in half a century. Same with healthcare. President Biden passed legislation that has resulted in significant price reductions in commonly prescribed drugs used by tens of millions of Americans. Biden also negotiated a deficit-cutting agreement with Republicans last June (which the Freedom Caucus is attempting to escape because Kevin McCarthy is no longer a Speaker).
You get the point. Biden delivers. Trump is still making empty promises that were proven to be empty in 2017, 2018, 2019, and 2020. We must amplify both parts of that message—Biden’s accomplishments and Trump's recycled, empty promises.
Talk to you tomorrow!
“Biden delivers. Trump is still making empty promises.”
“Repeat and amplify Biden’s accomplishments and Trump’s recycled empty promises.”
From start to finish, an excellent article.
I read some of the statements trump wrote on Christmas Day. They were ugly, mean, and filled with hate and vitriol. That is all he has. And it is exhausting to be constantly subjected to it. I cannot fathom why the MAGAts eat this up. It’s like they have mutated to be another species.
Here is hoping there is a conviction before the election.
When I was teaching yoga, I would end my classes with:
May we have peace in our hearts, peace in our minds, and peace in the world around us. May the entire universe be filled with peace and joy and love and light. Namaste.
Today, a few days before the new year begins, our group of dedicated volunteers is organizing a post carding campaign to help get out the vote in NY’s special election to elect a successor to despicable George Santos. We live in NC and several of us are active in Seniors Taking Action. Last year the group helped campaigns in NC and we are hoping to return the favor before concentrating on the 2024 election both here in our state and for the general election. It would be easier to wait til the holidays were over, but why waste any of the precious days left to remind people of how far we have come in crawling out of the hole that Trump’s Administration dug for us.
I remember the election of 2016 was called by many the most significant election in our history. Too few people heeded the call. The same is being said about the upcoming election, but now it’s like a four alarm fire. It’s up to all of us to sound the alarm and make our friends, families, children and grandchildren listen.
Make a plan to work a little every day to make things happen. It’s up to all of us.
Ilene Freedman
NC Coordinator, Seniors Taking Action