The courts aren’t coming to save us.
January 10, 2024
I believe that Donald Trump will be convicted for election interference, for retaining national defense documents, and for violating Georgia’s RICO statute. But even if Trump is convicted in multiple cases before the 2024 election, he will be able to appeal each of the convictions, ensuring that he will be able to avoid prison for months or years after the 2024 election.
My point is not to discourage people. Every effort to hold Trump accountable is valuable because it exposes Trump's criminal conduct and reminds voters that he will likely spend his remaining years in prison. The collateral effect of Trump's trials or convictions on the election will be helpful—but is not enough to save us. If we do not defeat Trump in 2024, the convictions may be meaningless. Every avenue to defeating Trump runs through the ballot box.
We must defeat Trump in November. We cannot expect the courts to save us.
If we accept that premise, we can observe and analyze the various court proceedings with the appropriate level of interest and detachment they deserve. We should be vitally interested in what is happening in Trump's criminal proceedings, but we should not hang on every development as if it will determine the outcome of the election. It won’t.
Our primary focus should be on registering voters, ensuring turnout, and spreading the truth about Joe Biden’s presidency. We have elections to win—up and down the ballot. If we exercise discipline and fortitude over the next ten months, we will maximize the chances of a landslide victory by Joe Biden.
With that as background, let’s look at one of the most bizarre court hearings in our nation’s history.
DC Circuit Judges are skeptical of Trump's presidential immunity defense.
Background on Trump's presidential immunity defense.
Before describing the hearing before the D.C. Circuit today, let’s remind ourselves of Trump's presidential immunity defense. Trump claims that he is absolutely immune from prosecution for “official acts” as president—even if those official acts violate US criminal laws. The immunity that Trump claims does not appear in the Constitution. Indeed, the only provision of the Constitution to address the question says that a president who is impeached by the House and convicted in the Senate can thereafter be charged in a criminal prosecution.
The relevant section of the Constitution, the Impeachment Judgment Clause, says the following:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
Trump argues that because the above clause does not address a president who is not convicted in the Senate after impeachment, he is immune from “indictment, trial, judgment, and punishment, according to law.”
Trump's argument for presidential immunity, therefore, (a) does not appear in the text of the Constitution, (b) contradicts the clear import of the Impeachment Judgment Clause, and (c) leads to absurd results if true.
The last point—leading to absurd results—was the main topic of discussion in the D.C. Circuit Court hearing today. See, e.g., Slate, Trump’s Legal Arguments Are Getting Increasingly Embarrassing.
The D.C. Circuit judges were openly skeptical of the absurd results that follow from Trump's claim of presidential immunity.
As noted above, Trump's claim of presidential immunity leads to absurd results. The three D.C. Circuit judges asked a hypothetical of Trump's counsel John Sauer that led to one of the most ridiculous answers ever given in response to a judge’s question in the history of our nation.
I print the relevant passages below, but to summarize, Sauer asserts that if a president ordered the military to assassinate his political opponent, the president could not be charged with a crime if 35 Senators from his own party refused to convict him in a Senate impeachment trial.
Here is the questioning (with thanks to Slate for printing this excerpt):
Judge Pan: I asked you a yes or no question. Could a president who asked SEAL Team Six to assassinate a political rival who was not impeached and convicted, could he be subject to prosecution?
John Sauer: If he were impeached and convicted first.
Judge Pan: So your answer no.
John Sauer: My answer is a qualified yes. [¶]
Judge Pan: I have asked you a series of hypotheticals about criminal actions that could be taken by a president and could be considered official acts and have asked you, would such a president be subject to prosecution if he’s not impeached or convicted, and your yes or no answer is “no.”
John Sauer: I believe my answer was a qualified yes if he’s impeached or convicted first.
Judge Pan: My question was, so he’s not impeached or convicted, let’s put that aside. You’re saying a president could sell pardons, could sell military secrets, could order SEAL Team Six to assassinate a political rival. [¶]
John Sauer: Those are very extreme examples of potential official acts.
John Sauer is a fool, but not because of his nonsensical answer—an answer he doesn’t believe. He is a fool for representing a client who orders him to make nonsensical arguments. John Sauer deserves every ounce of opprobrium that will be heaped upon him for the rest of his life (and for centuries thereafter).
There is more, but the above exchange describes the tenor of the hearing—incredulous judges asking questions because they cannot believe that the lawyers are actually making nonsensical arguments.
What happens next?
It wasn’t clear from the hearing what route the three-judge panel will take to rule against Trump—but it seems clear that it will do so. The panel could simply rule they don’t have jurisdiction to hear the case. They could say they don’t have jurisdiction to hear the case, but if they do, rule that Trump is wrong. Or they could rule against Trump on the merits by assuming they have jurisdiction to hear the appeal.
If the panel rules that there is no jurisdiction to hear the appeal, Trump has forty-five days to request a rehearing in the D.C. Circuit (per D.C. Cir. Rule 35(a)). If rehearing is denied, the case returns to Judge Chutkan in seven days. Under that scenario, Judge Chutkan could probably get the case back on track for trial in the summer of 2024. Other scenarios result in a trial after November 2024.
Of course, all of the above is complicated by a possible appeal to the Supreme Court. More on that later in the week.
If you are interested in a more detailed explication of the arguments at the hearing see Washington Post, Four key takeaways from Trump’s presidential immunity hearing, (accessible to all), and Slate, Trump’s Legal Arguments Are Getting Increasingly Embarrassing.
The Aftermath.
As usual, Trump held a post-hearing press briefing. He warned that if the D.C. Circuit ruled against his presidential immunity defense, there would be “bedlam” in the country—a not-so-veiled threat of violence. See WaPo, Trump warns of ‘bedlam,’ won’t rule out violence after immunity hearing.
Trump said, in part,
I think they feel this is the way they’re going to try and win, and that’s not the way it goes. It’ll be bedlam in the country. It’s a very bad thing. It’s a very bad precedent. As we said, it’s the opening of a Pandora’s box.
Like his statement before January 6—“Be there. It will be wild.”—Trump's followers know when he is calling for violence.
But there is reason to believe that Trump's ability to summon mobs to act on his behalf is waning. Unlike the initial criminal proceedings against Trump there was scant evidence of Trump supporters in the vicinity of the D. C. courthouse today—even though Trump used his vanity social media platforms several days ago to announce his plans to attend today’s hearing.
Perspective.
Yes, Trump is trying to run out the clock—and may be succeeding to an extent. But the walls are closing in on Trump and he is panicking. In response, he is threatening violence in the streets and “namechecking” Supreme Court justices that he nominated to the Court. Those are the acts of a desperate man. He is on the run. Let’s keep it that way!
Speaker Mike Johnson is losing control.
Speaker Mike Johnson tried to convince the GOP caucus in the House to support the top-line spending agreement with Senate Majority Leader Chuck Schumer. Freedom Caucus members are unhappy with Johnson and are unlikely to support the agreement. A short-term funding extension is looking more likely—something Johnson said last November he would oppose. See See The Hill, Speaker Johnson defends spending deal to unhappy conference.
As a result, some far-right members of the Freedom Caucus are whispering about Johnson’s ability to continue in the job of Speaker. See Political Wire, Whispers Grow About Dumping Mike Johnson (politicalwire.com)
It is unlikely that Johnson will be replaced in the short term, but the House GOP faces a series of tough votes over the next three months. With each vote that passes with majority Democratic support and minority Republican support, Johnson’s position will become weaker. Let’s hope that Johnson secures a budget for 2024 before he is dumped by his GOP colleagues.
Impeachment watch.
As Republicans are busy not passing a budget, they are spending their time talking about impeachment of Homeland Security Secretary Alejandro Mayorkas and President Joe Biden. Neither effort is faring well.
GOP ally throws cold water on Alejandro Mayorkas impeachment.
Law professor Jonathan Turley has been a reliable expert witness for Republicans in impeachment hearings. He famously defended Trump in the two impeachment hearings in 2020 and 2021. Turley also recently testified in the Biden impeachment inquiry and made damaging admissions that undermined the GOP’s baseless attempts to impeach Biden.
On Tuesday, Turley published an op-ed saying that there is no evidence that Secretary Mayorkas has committed any crime or misdemeanor. Instead, according to Turley, Mayorkas is simply pursuing policies that Republicans don’t like. See The Hill, GOP witness in Biden probe says Mayorkas conduct not impeachable.
Turley wrote,
There is also no current evidence that he is corrupt or committed an impeachable offense. . . He can be legitimately accused of effectuating an open border policy, but that is a disagreement on policy that is traced to the President. . . . Mayorkas has carried out [Biden’s] policies. What has not been shown is conduct by the secretary that could be viewed as criminal or impeachable.
Don’t believe for a moment that Turley’s lack of enthusiasm for a Mayorkas impeachment will slow down the GOP’s efforts to conduct a “show trial” in the House. They will find some other law professor willing to say anything for fifteen minutes of infamy.
President Biden impeachment inquiry.
Jim Jordan was on a Sunday talk show last weekend and effectively admitted that Republicans have no basis for impeaching President Biden. When Jordan was asked about the evidence against Biden, Jordan said, “The most damning evidence we got thus far is what we got from Devon Archer, Hunter Biden's business partner, because he says what they were selling was the brand.”
But as noted in Newsweek,
In a transcript of his testimony before the committee, [Devon Archer] was asked if he was aware of any wrongdoing by the president.
"No. I'm not aware of any," Archer said.
[Devon Archer] also said he had no knowledge of Joe Biden having involvement with Burisma and rejected claims that the president and Hunter Biden each accepted a $5-million bribe from an official within the company.
In other words, Republicans got nothing. That won’t stop the impeachment inquiries because they need something to distract from the fact that they are unable to pass a budget bill that will make it through the Senate.
Read this . . . for some tough love and straight talk.
A reader posted a link to an essay by Steve Erickson in The Journal of the Plague Years, 13 New Year’s Resolutions for Saving Democracy. Erickson addresses 13 “luxuries” that we cannot indulge in the coming year. It is tough love . . . irreverent and true. Among the titles for his resolutions are “We do not have the luxury of our dread” and “We do not have the luxury of our euphemisms.”
Erickson’s writing packs a punch. Here are two of his resolutions to whet your appetite:
“We do not have the luxury of moral vanity.” If you vote for Cornel West or Robert Kennedy Jr this year, you are — shall we not put too fine a point on it? — a [deleted term]. You’re making a meaningless choice in the most meaningful election in modern American history so as to indulge your narcissistic sense of self-righteousness.
“We do not have the luxury of Deus ex machina.” While wishing Trump to be accountable before the law, we must accept that any trial or decision by a higher court is unlikely to spare the country what it karmically doesn’t deserve to be spared: a national political referendum on who we are as a people. Otherwise, Trump will ever more in the eyes of history . . . be a martyr to a systemic technicality. Trump needs to be rejected electorally by every single patriot who can drag her—or himself—to the polls to do so.
Trigger warning—Erickson has some tough words about Biden’s age, but ultimately concludes, “But presently every indication is that Biden is going to be the Democratic nominee, and sometime soon it will be time for the rest of us to just shut up about it.”
Opportunities for reader engagement.
Join me in person on Sunday in Los Angeles for a “Civic Sundays” meeting.
I will be appearing in person at a meeting of “Civic Sundays” in the Silverlake/Los Feliz area of Los Angeles at 10:00 A.M.–12:00 Noon on Jan. 14. Sign up below to obtain the address. Proof of vaccination is required and there is a cap on attendance, so don’t delay!
Civic Sundays has been meeting weekly since early 2017 working to get progressives elected in Southern California and nationwide. Join us to reach voters via phone bank, text bank, postcard, and canvass. Every contact makes a difference.
Sign up to receive Sunday's meeting address here: Civic Sundays Meeting -- Sign up here!
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Focus for Democracy's First Zoom Briefing of 2024.
Focus for Democracy is holding its first meeting of the year. Those of you who have attended know that Focus for Democracy is a great way to hear from experts about directing your donations to maximum-impact organizations. Here is a note from Focus for Democracy for their upcoming event:
Want expert advice on how your contributions can win the MOST votes? Join Focus For Democracy’s next Zoom briefing. F4D’s expert evaluators rigorously examine the evidence behind the tactics used by scores of organizations. In this briefing, they’ll tell you about organizations that enable your contributions to produce many times more votes in 2024 than you could with typical donations.
Thursday, January 11th
5:00 pm PT/8:00 pm ETRegister here: http://tinyurl.com/F4D11Jan
Concluding Thoughts.
Eighty people have signed up to (so far) to meet with my wife and me on our road trip through Minneapolis-St. Paul, Dubuque, Davenport, St. Louis, Memphis, Jackson, and New Orleans. See yesterday’s newsletter for more details and dates of reader meetings. Looking forward to seeing everyone! Expect to hear from me in the next 48-hours with addresses and times for meetings.
As the events of the day have distilled in my mind over the last several hours, the clearer it is that Trump is about to start a losing streak in court. Yes, he will delay. But he will suffer a series of losses in his criminal cases. (He is likely to remain on the ballot because the reactionary majority will protect him.) But he will be a weakened candidate. His shrinking base of supporters will cling to him ever more tightly, which will make him ever more unattractive to persuadable independents and Republicans. In other words, we are starting the long, slow ascent to victory in November—just like we did in 2020. Let’s do it again!
Talk to you tomorrow!
While I find Steve Erickson's essay to be on point, as a "dispassionate observer" I find it quite ageist to suggest that Joe Biden will be too old for the job "sometime in the next four years". That is something no one knows, period.
I am still working as a nurse practitioner and have been caring for people as a professional for 44 years now. I know and have know many people who have gone into their 90's while maintaining their full cognitive abilities.
My mom, now at 89, took a big cognitive "hit" with the isolation of the pandemic and the passing of my father during that time. My brother, a business owner, has made comments stating "well, this is what happens in your 80's." No, not true. I have had to inform him that his premise is false, as I know from years of experience through relationships with many, many people. I don't have an opinion on this based on an observance of one person's journey through their 9th decade, as my brother does.
Our president has the political skill, moral principles and vision for steering this country to further enhance our values and therefore policy as a democratic nation. I am in my 7th decade of life myself, and if there is one thing I have learned, it is not to buy trouble where none exists.
We need to focus on the experienced, proficient, yet gracious man we are fortunate to have had to lead this country the last 3 years. No one has any proof that any of that will change in our president. If it should change before 2028, I'm confident we can deal with that.
While I agree our engagement and efforts must be laser-focused on the 24 election contests up and down the ballot, I also believe a convicted-candidate Trump would hemorrhage sufficient support to increase the likelihood of a Biden win whether or not we were contending with third party candidates. Accordingly, I am deeply interested in whether the three-judge D.C. Circuit Court panel will reject Trump’s immunity claim and also lift the stay currently preventing the 1/6 pre-trial procedures from resuming. In my view, the judiciary is obligated to enlist every possible means to block efforts to delay at least the 1/6 trial from being heard prior to the public casting its 2024 votes for the Presidency.