Donald Trump, The Occupier

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I don’t mind admitting that when I was in law school I had a little trouble with all those Latin words — res ipsa loquitur, and so on. It now appears that President Trump is having his own troubles with Latin words. He recently declared a bogus emergency in Los Angeles and not only nationalized the California National Guard without the participation of the Governor, but stationed active-duty Marines in the city. Trump’s Latin problem is with the phrase posse comitatus.

Under ancient English common law, the sheriff of any county was obligated to call out able-bodied men to assist him in defending the county against the King’s enemies and to keep the peace. This was the posse comitatus. Down to our own time, the issue has become who may not be called out to assist regular law enforcement in keeping the peace. Our current distaste for having the military enforce civilian law has strong roots in the 1770 Boston Massacre, where British troops were stationed in Boston to quell civil unrest and fired on a heckling crowd.

The Posse Comitatus Act was passed in 1878 at a time when federal troops were being used to prop up Republican-controlled governments in former Confederate states during Reconstruction. As amended, the Act reads

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

But the Constitution gives Congress, not the President, the power to call out the state National Guard for limited purposes. When Congress has not acted, the President can call out the Guard only in compliance with a federal statute through which Congress has delegated its power.

In 10 U.S.C. § 12406, Congress has delegated to the President the authority to call into federal service the National Guard of any state whenever (1) the country is invaded by a foreign nation, (2) there is a rebellion or the danger of a rebellion against the authority of the federal government, or (3) the President is unable with the regular force to execute federal laws. The order calling out the state National Guard must be issued by the Governor of the state involved.

How then does Trump justify what he has done in Los Angeles? He issued a proclamation based on the statute entitled “Department of Defense Security for the Protection of Department of Homeland Security Functions.” He did not claim that the country was being invaded or that he was unable to execute immigration laws with the existing federal force. Instead, he claimed that acts of violence and disorder directly inhibit the execution of federal laws and therefore constitute “a form of rebellion against the Government of the United States.”

The sinister thing about Trump’s proclamation is that it did not refer to Los Angeles. Instead it referred to unnamed places where protests against Federal functions are occurring or are likely to occur “based on current threat assessments.” It did not identify the specific California National Guard units that were deployed. It directed the Secretary of Defense to coordinate with the “Governors of the States” in identifying and ordering into service the appropriate members and units of the National Guard. Clearly this order was designed as a predicate for a geographically unlimited use of National Guard troops.

One can deplore the acts of violence that have taken place in Los Angeles – which I certainly do – without accepting the incredible exaggeration that they constitute a rebellion against the United States. A rebellion is legally understood to be an organized attempt to change the government or leader of a country. Trump’s misuse of the concept is a dangerous, expansive interpretation of federal power that we cannot allow to be normalized. Trump is spoiling for a fight and doesn’t care what laws or guardrails he rolls over.

Neither the Governor of California nor the Mayor of Los Angeles were consulted before Trump’s power grab. In fact, they both forcefully objected to federalized National Guard troops being deployed on the streets and asserted that local authorities had sufficient resources to handle the unrest. The State of California has sued the Trump Administration, alleging Trump was without power to usurp control of the California National Guard without involving Governor Newsom, and that he is also without Constitutional power to intervene in the state’s enforcement of its own criminal laws.

In response to California’s suit, on June 12 a federal court in San Francisco issued a temporary restraining order against Trump directing him to “return control of the California National Guard to the Governor of California forthwith.”  The court focused first on whether Trump’s proclamation met the terms of 10 U.S.C. 12406. It did not. The court ruled there was no “rebellion” in Los Angeles because there was no armed, organized attempt to overthrow the government underway.  On Trump’s ability to execute the laws, the court ruled that the statute relied upon by Trump “does not allow for federalizing of the National Guard when the President faces obstacles that cause him to underperform in executing the law.” It requires him to be unable to execute the laws.

The court further ruled that “it is not the federal government’s place in our constitutional system to take over a state’s police power whenever it is dissatisfied with how vigorously or quickly the state is enforcing its own laws.” The police power is one of the primary powers reserved to the states by the Tenth Amendment.

Late in the evening on June 12, a federal appeals court stayed the immediate effect of the lower court’s restraining order pending consideration of the issues. The effect of the stay is to allow continued federal control of the National Guard until further order of the court.

None of this litigation addresses the deployment of Marines, which dangerously raises the stakes. The statute Trump has so far relied on, 10 U.S.C. 12406, does not authorize him to deploy the federal military against civilians — only to federalize National Guard troops. What would allow this is a statute called the Insurrection Act. It authorizes the President to use the military “whenever he considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings.”

Trump has hesitated to use the Insurrection Act because he will be unable to show in court that the use of Homeland Security agents and California’s regular law enforcement personnel are insufficient to enforce the laws in the normal way.

Trump’s disregard of the nation’s laws and protocols, to say nothing of ignoring the historical significance of using federal troops against civilians, is wildly out of balance. He seeks to flex federal muscle for political purposes, not to address a rebellion or an insurrection. There is, of course, nothing of this sort happening in Los Angeles. Everyone can see that. Trump is nothing more than a lawless occupier. Unless this reckless military venture is stopped now, he will occupy other cities.

 

 

Representative Riley Moore: Trump Toady

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The behavior of Rep. Riley Moore has been embarrassing – both to his constituents and to himself. Since being elected to represent West Virginia’s Second Congressional District in November 2024, Moore has not had an original thought. Instead, he has let Donald Trump do his thinking, eagerly supporting every misguided and dangerous policy spun out from the Trump chaos. But Moore will learn a hard lesson.

Trump’s “smash and grab” Administration is fueled by the fiction that he was given an unprecedented and powerful mandate for change by the American people. But his nationwide popular vote margin over Harris was only 1.5%, one of the slimmest margins ever. Trump’s electoral vote margin of 86 votes paled in comparison to Obama’s (365) or Reagan’s (525). Trump is President, not because he won a huge number of new voters but because Harris won 6 million fewer votes than Biden.

The real measure of an election victory is called the Determinative Popular Vote – the minimum number of votes in the right states that would have changed the electoral outcome. Had Harris won Michigan, Wisconsin and Pennsylvania — which Trump won by a total of 230,000 votes — then she would have been the victor. That means that only .0015 of voters nationwide made Trump the winner. So Trump has no mandate whatever. He barely squeaked into the presidency.

Nevertheless, in his first 90 days Trump has acted like a king. He has no legislative agenda, governing instead by Executive Order fiat. He has destroyed USAID and the Department of Education, gutted federal employment, threatened the tax status of universities, bullied law firms, challenged the legitimacy of federal courts, attacked the press and undermined cultural institutions. He has proposed to wreck the international trade order with “reciprocal” tariffs and caused the stock market to tank. He has snatched immigrants from the streets and deported them without due process. All this has resulted in Trump’s approval ratings dropping to the lowest point of any modern President in the first 90 days.

Back to Riley Moore. One wishes he would behave in Congress with some restraint and modesty. After all, he is so new he hardly knows where the men’s room is. Despite this, he has been an enthusiastic cheerleader for all things Trump. This is the sin of failing to look before you leap, because Trump’s outrageous policies will hurt West Virginians and there is bound to be a snapback, even here.

As an example, Moore voted to support the recent House budget resolution, saying

President Trump’s landslide victory was a mandate for change, and with passage of today’s budget resolution, House Republicans are unlocking the process needed to deliver on the America First Agenda.

This is the budget that will pave the way for continuing tax cuts for the wealthy, but only if it cuts Medicaid spending. Medicaid is the joint federal and state program for health insurance and medical services for low-income and working people. Over 500,000 West Virginians, nearly 30% of the state’s population, are supported by Medicaid.

On April 2, 2025, Moore joined President Trump at the White House to celebrate “Liberation Day,” the day when reciprocal tariffs were announced on all countries having trade surpluses with the United States, even small islands populated only by penguins. The formula for these tariffs was so childish and unprofessional that the stock and bond markets promptly tanked, eroding the retirement savings of many West Virginians. Several days later Trump folded like a cocktail napkin and “paused” these tariffs.

But the most shameful thing Moore has done is to fly to El Salvador and pose for gloating photos in front of a cell full of deportees hustled illegally out of the United States to avoid interdiction from a federal court. The Charleston Gazette called Moore’s social media post with jailhouse selfies “dehumanizing and a disgrace to the office he holds and the people he represents.”

In its April 19 issue, the Economist magazine reported that Trump already has a negative approval rating in the six swing states he flipped from Biden. As of April 24, only 44% of Americans approve of his conduct in office. In the 2018 midterm elections during Trump’s first term Republicans lost 42 seats and control of the House. Riley Moore remembers 2018 well. That year in a reaction to Trump’s excesses, voters in Jefferson County turned Moore out of the House of Delegates even though he had been picked to become the new House Majority Leader. What’s past is prologue.

What is “Due Process” and Why Should We Care?

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Recently, ACLU attorneys representing the alleged Venezuelan gang members who were deported in chains to El Salvador by the Trump Administration have asserted that these people were denied due process. But this legal concept seems elusive and hard to define. And we have so much else to worry about. Why care about this?

Trump’s rough deportation of these people occurred without determining whether they were engaged in criminal conduct or were even members of the gang. This shouldn’t surprise us. History shows that it is often the most disfavored or despised members of society whom a mob, or occasionally our government, thinks are unworthy of the basic protections the rest of us take for granted. But, hey, they had tattoos. That must count for something.

Due process is nothing more than following established rules and procedures before depriving someone of life, liberty, or property, and fairness in the penalty when laws are broken. In other words, due process requires the penalty to fit the crime. The source of our right to due process is the Fifth Amendment, which restricts the federal government from peremptorily punishing someone for a crime using irregular procedures or, as in this case, simply no procedures. The Fourteenth Amendment expands these protections to the way state and local governments operate.

Lynching is an example of the complete breakdown of due process. Our history, even into the “civilized” 20th Century, includes hundreds of lynchings of Black Americans. These victims lost their lives to the blood lust of mobs who bypassed the legal system’s method for establishing guilt in the regular, lawful way. As a nation we are still living down that shame.

Keep in mind that due process doesn’t prevent punishment where punishment is appropriate. It merely slows down the process a bit and requires the government to have its facts straight. Just maybe we will discover that the person of interest isn’t really the right one or did something far less serious than we assumed at the beginning.

That might be the case with respect to some of the deportees Trump flew out of the country in defiance of a court order. That court order would have required nothing more than delaying deportation until individualized deportation hearings could be held to get the facts straight.  The deportees were already in custody and could not have committed additional crimes, even if they were guilty of earlier ones.

One federal appellate court judge reviewing the situation said that a hearing to determine gang membership was required and that “even Nazis got better treatment under the Alien Enemies Act than has happened here.”

Some will argue – incorrectly – that aliens in this country unlawfully aren’t entitled to the protection of Fifth Amendment due process. The Fifth Amendment says that “No person shall … be deprived of life, liberty, or property, without due process of law.” Notice that these rights are not limited to citizens, or even those non-citizens lawfully here. Aliens physically present in the United States, regardless of their legal status, are regarded as persons guaranteed due process of law.

None of what I have said should be taken as a defense of criminal gangs or aliens behaving in unlawful ways. We should allow law enforcement to do its job. Sometimes imprisonment is the penalty for committing a crime. Sometimes it is deportation. But our legal system, until recently the envy of the world, requires proceeding in deliberate ways that do not make law enforcement itself unlawful.

So, why should we care about due process? Just wait until your child or grandchild is rounded up in a drug bust simply because she hung out with the wrong people and had a tattoo on her arm. Then you’ll understand.

The Folly of Trump’s Tariffs

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Over and over in American history we have tried tariffs to solve economic problems. Over and over tariffs have failed to solve those problems, while creating new ones. Sometimes it takes the passage of years for us to forget how badly tariffs hurt us the last time we tried them. Other times we have a leader who just doesn’t know or care about history and recklessly promotes tariffs to fix an imaginary problem. We have that leader now.

Usually, the U.S. government adopts tariffs for rational reasons. For example, we used tariffs early in our history to protect and encourage domestic manufacturing. But Trump’s proposed tariffs can’t be justified on that ground. He proposes blanket tariffs on all goods from a particular country, not targeted tariffs on goods in industries that need protection.

Some argue that tariffs will reverse the “hollowing out” of American manufacturing. Phil Gramm and Larry Summers, former Senate and Treasury officials who know what they’re talking about, debunk that idea in a January 23, 2025 letter in The Wall Street Journal. They point out that American manufacturing is at an all-time high. We are producing with higher productivity, meaning fewer employees but with higher wages. This is a great strength of the American economy, not a weakness.

Before 1913 when the Sixteenth Amendment established income taxation, tariffs were the main revenue source that funded the government. Our economy then was primitive by today’s standards. Today only 1.9% of our revenues come from tariffs. The U.S. government can tax and borrow with such ease that tariffs are no longer needed. Trump says that tariffs will make us rich, but have you heard any serious figures from the Treasury on the amount tariffs would raise or what spending gaps this revenue would close? Of course not.

Trump’s bizarre threats to use tariffs, and the tariffs he has so far imposed, have no connection to the traditional way tariffs are used. Instead, they are an effort to strongarm the target countries into adopting policies favorable to the U.S. that Trump cannot obtain through normal diplomacy.

So far this has been to force Canada and Mexico to supplement their efforts at the U.S. border to stop immigration and fentanyl. This bullying has not been well received in these two countries. The U.S. national anthem was recently booed by Canadian fans at an NBA game in Toronto. Only time will tell whether roughing up our closest neighbors and two largest trading partners will have lasting negative effects.

In the 1930s the Smoot-Hawley Tariff Act turned a recession into a full-blown depression. That legislation placed tariffs averaging 20% on about 20,000 imported goods, including agricultural products.  The goal was to protect American farmers. However, it raised the prices of food and other items. Other countries retaliated with tariff hikes, forcing global trade to decline by 65%.

We have already seen China retaliate for Trump’s imposition of 10% tariffs on goods they export to us. Their tariffs on our goods entering China will mean we will sell less in the huge Chinese market, so our own business income and American jobs will suffer.

American tariffs cause prices to rise here because foreign goods become more expensive. We’re not talking just luxury goods like BMW cars that we can easily avoid buying. Tariffs on Canada, Mexico and China will mean avocados, cherry tomatoes, children’s clothing, toys, electronics and all the other things we consider part of middle-class life will rise in price. Mexican President Claudia Sheinbaum warned that “one tariff will be followed by another.” Attention Wal-Mart shoppers! Stuff you like to buy will start getting more expensive.

It will not only be goods from foreign countries that will become more expensive. Experience has shown when a tariff is placed on a foreign item making it more expensive, the price of competing American items also increase because American sellers are able to raise prices and still be less expensive than the tariffed foreign item. You can count on Trump having no plan to stop that sort of thing.

Then there are longer term problems. The Economist magazine explains that tariffs on foreign goods induce American companies to “innovate less and misbehave more.” Sheltered from better run foreign rivals, American firms would have less incentive to produce superior and less expensive products. In a word, they would get lazy.

As he did in his first term, Trump is governing by impulse and chaos. I understand that many folks voted for him because of inflation. But it is unlikely they will see the payoff of lower prices. Instead, Trump’s tariff folly will add to their burden.

Civil Liberty and Football

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Lately I have been spending too much time watching football on television. It has helped take my mind off what might happen to civil liberty during the upcoming Trump administration. By civil liberty I mean the kinds of activity that are permitted or outright protected by our Constitution. Between beers – or maybe because of them – I realize that football provides some metaphors for talking about civil liberty in our political moment.

One thing I’ve noticed these days is that Americans don’t get too excited over the loss of civil liberty when it is other people who are losing it. Contrast this with the period in the 1780s when the draft Constitution was being debated in the states. It was all anyone could talk about. And ratification would have been rejected if a bill of individual rights that protected everyone had not been added.

Constitutions set out the fundamental structure for the operation of a society, which in our case includes the rights individuals can enjoy. But none of these rights is absolute. Because our Constitution is a political document, not a sacred text brought down from the mountain, the meaning of a particular provision can change depending on whether it is in the political spotlight, and whose claims to meaning are supported by political power.

So where is the boundary line for the meaning of fundamental rights at any moment? The appropriate football metaphor is “line of scrimmage.” The tug and pull of politics have moved that scrimmage line on civil liberties back and forth over the years. Sometimes this results in a “new” interpretation of the Constitution moving the line in one direction. The recent loss of a woman’s right to choose is an example. At other times powerful political movements result in constitutional amendments moving the line in a different direction. Prohibition and women’s suffrage are examples of this.

Nothing better illustrates the power of politics to determine civil liberty than the right of free speech. The First Amendment unequivocally states that “Congress shall make no law abridging the freedom of speech, or of the press.” No law means no law, right? Well, no, the whole history of the First Amendment has been one long process of carving out disfavored speech unworthy of protection at a particular moment. Obscenity and hate speech are examples. Politics drives this process.

At the outbreak of World War I, it was a federal crime to say anything that had the natural tendency to cause insubordination or disloyalty in our military forces. Under that law, the socialist Eugene Debs went to prison for praising others who had encouraged refusal to register for the draft. Fast forward to 1968, when the sons and daughters of the middle-class were in the streets protesting the Viet Nam war. Then the Supreme Court ruled that even expressly counseling draft resistance was protected speech. The connection between the political moment and the outcome of these cases is unmistakable.

Another useful football metaphor is “the red zone.” That’s when one team has the ball inside the 20-yard line of the other team. Big things are likely to happen when a team is in the red zone, but whether this will be good or bad depends on which team you’re on. I can’t help feeling that Trump is in the red zone when it comes to immigration. He has promised to deport millions of undocumented immigrants and thinks he has the mandate to do so. We’ll see if he does.

It will be a shock to many in the new Trump administration that non-citizens – even unlawful immigrants – have Constitutional rights. The Fifth Amendment says that “No person shall … be deprived of life, liberty, or property, without due process of law.” Notice that these rights are not limited to citizens, or even those non-citizens lawfully here. Aliens physically present in the United States, regardless of their legal status, are regarded as persons guaranteed due process of law.

Despite some small movement in the line of scrimmage, the Supreme Court has usually ruled that aliens are entitled to a hearing before being deported at which they must receive an explanation of the reasons proposed for their removal, have the assistance of counsel, introduce evidence and cross-examine witnesses, and appeal an unfavorable ruling. If we are a nation of laws, these deportation hearings cannot be sham proceedings where nothing matters but the government’s desire to eject the alien.

Trump suggests that he will declare a national immigration emergency — a truly fictional state of affairs — but that kind of declaration is necessary for him to use military resources for the detention and removal processing of aliens. He may use other fictional reasons to override the due process rights of detained aliens, believing that the political moment strengthens his hand.

I think the new administration will run into significant trouble in the courts if it tries to bulldoze civil liberty using overheated rhetoric and a false narrative. One or two examples of criminal aliens don’t make the case that we have been invaded. And I believe the American people will not lend political support to peremptory or cruel treatment of immigrants. We will throw a flag for unnecessary roughness.

 

 

 

 

 

 

 

 

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Trump Threatens Birthright Citizenship

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Donald Trump is back. And this time he will have a compliant Congress and a whole roster of willing Cabinet ministers. The first thing Trump promises to do — after upending international trade with tariffs — is to deport millions of immigrants. If this did not promise to be both tragic and harmful to the economy, I would feel like making a big bowl of popcorn, pulling up a chair and watching the whole debacle.

There is no question that we need to get control of our borders and reform our immigration system. If we purport to be a country of laws, then our immigration laws need to be enforceable. While I don’t subscribe to Trump’s racist and otherwise offensive reasons for deporting people, orderly immigration is an important goal. But equally so are the need to buttress our dwindling working age population and our national responsibility to behave with grace and compassion.

Listening to interviews of people who cross our borders illegally at great peril to themselves, one is struck by the ordinariness of their motivation. They just want to live more prosperous, secure lives. I’ll wager that any of our ancestors who came here voluntarily had the same motivation.

A part of the anti-immigration effort Trump promises is to eliminate birthright citizenship. This is the legal principle that if a child is born in the United States, she is a citizen of this country regardless of the citizenship or immigration status of her parents. More than thirty countries, including Canada and Mexico, recognize birthright citizenship. Others in Western Europe do not. They require at least one parent of the child to be a citizen.

Trump says birthright citizenship is a magnet for illegal immigration. He has threatened to use an executive order to eliminate it once he assumes office. There is one problem. Birthright citizenship is not a government policy that can be changed with an executive order, or even a law Congress can repeal or modify. The Constitution itself establishes this type of citizenship.

After the Civil War, the United States ratified several constitutional amendments designed to clarify the status of formerly enslaved people. Among these was the Fourteenth Amendment, which states “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” This is clear enough. The only possible ambiguity relates to the second clause regarding being subject to the jurisdiction of the United States.

Far right immigration opponents like John Eastman have urged Trump to declare by executive order that children born to illegal immigrants are not subject to the complete jurisdiction of the United States because they are not lawfully here and still theoretically owe allegiance to a foreign sovereign. Recall that Eastman, the criminally indicted and disbarred lawyer, was the one who came up with the theory that Mike Pence could simply refuse to certify the results of the 2020 election.

Of course, no established precedent or once-secure right seems safe with the current Supreme Court. But in the case of United States v. Wong Kim Ark, decided in 1898, the Court established that the Fourteenth Amendment creates birthright citizenship even for the children of non-citizen residents. The case arose while federal Chinese exclusion legislation was in force. The government argued that Wong Kim Ark, although born in San Francisco, was the child of two Chinese non-citizen parents who were subjects of the Chinese emperor making him also a subject of the emperor. He was thus not subject to the jurisdiction of the United States, or so the argument went.

But the Supreme Court wasn’t buying this argument. It ruled, with two exceptions not relevant to today’s immigration debate, that anyone born within the territorial boundaries of the United States and residing here was “subject to the jurisdiction of the United States.” The jurisdiction of a country within its territorial boundaries is complete. So our “jurisdiction” applies to children born to illegal aliens — they are required to pay our taxes and are subject to criminal penalty for failure to comply with our laws like the rest of us.

It is hard to imagine West Virginians with serious concern about the practical effect of immigration on their lives, lawful or unlawful. In 2023, there were 32,309 foreign-born people in West Virginia, which is about 1.8% of the state’s population. This is lower than the national average of 14.3%. As a recent article in The Wall Street Journal put it, “there is little evidence that many recent immigrants – either those who entered legally or those who didn’t – have any inclination to go to West Virginia, the only state with fewer residents than it had in 1940.”

The same article pointed out that West Virginia has one of the two lowest labor-force participation rates in the country, while having the second highest rate of job openings and the fourth-highest rate of vacant housing. In other states eldercare is provided disproportionately by immigrants. And the National Association of Home Builders reports that while our native-born workers remain reluctant to join the industry, one in three craftsmen in the construction trades come from outside the U.S. Don’t we need more workers to care for our elderly and build our homes?

Other states with workforce problems like West Virginia’s and an aging population are trying to recruit immigrants. Maine’s government has a dedicated office to welcome and support immigrants. Utah has extended in-state college tuition to refugees, asylum seekers and other migrant groups.

But reason and good public policy don’t seem to matter as much these days as the appeal to emotion. The Trump juggernaut is set to roll. It’s just that when it comes to West Virginia, don’t count on good things happening from the President-elect’s attack on immigration and birthright citizenship.

Trump Fans Want to Talk About Anything But This — He’s Guilty

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It  started immediately after Donald Trump’s indictment. First there was the “whataboutism” and false equivalencies. What about Hillary’s emails? What about the classified documents Joe Biden had? Then the claim that the Justice Department has been weaponized to prosecute only Republicans. Then the claim that the communist, Democrat deep state is determined to take down the leading candidate to oppose Joe Biden in 2024.

This is all deflection. Just like Trump himself, his supporters are grasping at shiny, manufactured grievances but don’t want to talk about the big issue — he is guilty of the serious crimes charged in the indictment.

Whataboutism is the practice of responding to an argument, not with a counterargument, but with an attack that requires the opponent to go on the defensive about another issue. This avoidance maneuver happens often in political debate driven by partisan bias. Sometimes, and our present situation is one of those times, whataboutism is calculated wholly to avoid acknowledging an opponent’s valid point.

We shouldn’t reward whataboutism by taking it seriously. But, okay, what about Hillary’s emails and Biden’s documents? That’s where false equivalency comes in. The gist of Trump’s indictment is that he intentionally retained classified documents, repeatedly refusing to return them or even acknowledge he had them. Then he covered up and lied about having done so. Neither Clinton nor Biden was ever accused of that kind of conduct.

In fact, both Clinton and Biden fully cooperated when asked to do so. Biden actually self-disclosed that he had some classified documents from his time as Vice President. Nevertheless, Biden’s Attorney General Merrick Garland has appointed a special counsel to investigate. The conclusion of the Clinton investigation was that she had been careless but had no criminal intent. So no crime and no indictment. The investigation into Biden’s handling of classified documents has not reached a conclusion.

And here is another key point — Trump has not been criminally charged for taking to Mar-A-Lago any of the classified documents he returned when requested to do so, even though he had no right to possess them. If he had simply given all the documents back he wouldn’t be in this fix.

A person who claims that the Justice Department has been “weaponized” by the Democrats to indict Trump simply does not understand the special counsel mechanism. Or perhaps doesn’t want to understand. A special counsel like Jack Smith operates without political interference.

Special counsel are appointed by both parties. In fact, Trump’s Attorney General William Barr appointed John Durham as special counsel to investigate intelligence gathering and law enforcement activities directed at the 2016 election. The Biden Administration did not interfere with Durham’s investigation after Biden took office. Likewise, the Biden Administration has not influenced Jack Smith’s charging decisions.

The weaponization charge boils down to the fact that Donald Trump has been indicted, as if he is some sacred cow. The allegation is really driven by the result of Smith’s investigation, not the misuse of the process. But after reading the indictment, it is hard to imagine any other result.

The one serious argument made against indicting Trump is that in an evenly divided and polarized country a sitting President should not be seen as prosecuting his predecessor and current rival. The claim is that indicting Trump is political overreach by the Biden Administration of the sort common in third world countries. I am not persuaded.

In the first place, the argument loses steam in light of the independence of the special counsel. Jack Smith is a career prosecutor with an international reputation, not a political tool. Yes, there will be a cost to taking action against Trump — our exemplary system of justice will lose legitimacy among enraged Trump supporters. But where issues of grave national importance are involved there is also a cost in not acting. We would be more like a third world country if we failed to hold Trump accountable as any normal person would be. In the end, if he pays a price for his criminal behavior it will be a triumph for democracy and the rule of law, not a stain.

And by the way, why does the fact that Trump is the leading candidate for the Republican nomination matter? He has been the leading  candidate for months, even announcing early so he could be in the race when the expected indictment came down. Evidently, he thought this would protect him, but he has learned that being a candidate doesn’t give him a pass for crimes committed.

As far as the Democrats worrying about him as a candidate, nothing could be further from the truth. Biden’s advisors are crossing their fingers in hopes that Trump will be Biden’s opponent in 2024. As the Wall Street Journal aptly put it, if Republicans nominate Trump again, they won’t “own the libs,” the libs will own them.

Should the U.S. Lease St. Helena Island?

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Recent legal events have led me to recall St. Helena, one of the most remote places in the world. St. Helena is a small volcanic island in the Atlantic, about 1,200 miles off the coast of Africa and 4,000 miles from the coast of Brazil. The island was, of course, the final place of penal exile for Napoleon Bonaparte, the self-crowned Emperor of France.  St. Helena is now a British Overseas Territory, and I’m sure the Brits would welcome a new revenue stream from an old business — a small but very special penal colony.

St. Helena wasn’t the first place the world sought to stash Napoleon. In 1814 he was exiled to Elba, an island in the Mediterranean. Elba had a population of 12,000 and Napoleon was allowed the somewhat humiliating title of Emperor of Elba. Arriving at Elba he immediately began plotting his escape, which he accomplished in 1815 by slipping past his guards and eluding British ships.

Once back in France Napoleon began drawing huge crowds. French police forces were sent to arrest him, but upon arriving in his presence, they kneeled before him. Does this remind you at all of the fealty shown to a certain political cult leader in America today?

It wasn’t until after his defeat at Waterloo in 1815 that Napoleon was exiled to St. Helena.undefined That island was chosen because it was believed that escape was virtually impossible since the British Royal Navy controlled the Atlantic. Still, the British put Napoleon under armed guard, stripped him of most of his companions and placed him a lonely, windswept house named Longwood.

While at Longwood House, Napoleon constantly complained about the damp and windy structure, alleging that his captors were trying to kill him by means of the rather primitive conditions. Finally the British agreed to improve things and built him a new residence, but he died from complications from an ulcer in 1828 before it was completed.

Penal exile is not an option under the federal criminal statutes of the United States, but it is an intriguing idea for a President who fomented an insurrection and coup attempt. We may simply have to be satisfied with the thought that he could make new friends at a prison within the country.

The Big Lie Conspiracy

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The Declaration of Independence was based on a conspiracy theory. The theory was that the King of England and his high ministers had secretly agreed to deprive the American colonists of their rights as English citizens and to impose tyrannical rule. The Declaration recites a long list of facts offered as proof of the theory. In retrospect, it is unlikely that this theory was actually true, but events at the time took on a momentum that made further proof then beside the point.

This type of conspiracism, which tries to make sense of a disorderly world by asserting that powerful people are controlling events behind the scenes, can be quite useful in a democracy – provided that a serious attempt is made to develop the factual proof. But this useful type of conspiracism has been replaced today by an insidious type not concerned at all with facts. Instead of factual validation it seeks only social validation, often through the number of people who follow or “like” a Facebook post or retweet some outrageous allegation. Repetition and affirmation are the currency. This social validation makes the conspiracy allegations “true enough” without more.

In their 2019 book A Lot of People Are Saying, Russel Muirhead and Nancy Rosenblum call this the “new conspiracism.” They argue that while people who engage in this new conspiracism allege plots against the constitutional order and national values, they do not offer solutions or prescribe practices or institutions that should replace the malignant ones. Their intent is simply to delegitimize the current order. Delegitimization is the cleaving of the public from the sense that government has rightful authority. It undermines leaders of government and institutions and seeks to deprive those institutions of any claim to our respect or consent.

Take the assertion made by Donald Trump before the 2016 election that the election would be “rigged.” He did not bother to explain how it would be rigged or by whom.  He didn’t urge the adoption of a new system for fair elections. He simply characterized the whole presidential election process as corrupt, knowing that if that assertion couldn’t be proved entirely untrue, then it was true enough for people predisposed to believe him. And he made it true enough by constantly repeating it. If his intent had been to prepare his followers for an election loss, then Trump would have stopped claiming the election system was rigged after he won. But instead he continued making this claim.

In this way, Trump sought to use conspiracism to undermine a central democratic institution.  Many historians of authoritarianism and the decline of democracy have cited undermining public faith in elections as a key strategy of would-be dictators. Now, of course, the 2016 rigged election claim has made way for the Big Lie – that Joe Biden was not legitimately elected President in 2020 because the election was stolen from Trump. Those responsible for this heist are never identified.

The Big Lie fits the new conspiracism construct in two important ways. First, it is not concerned with facts and its continued vitality doesn’t depend on facts. Indeed, all the facts that have been developed about the 2020 election show that it was one of the cleanest elections in modern history. Some 19 legal challenges were made to election results in various states. In order to survive, lawsuits require supporting facts but because the Big Lie has no supporting facts – only hyperbolic rhetoric – all 19 of these claims were dismissed.

The absence of supporting facts has not prevented a substantial slice of the public from accepting the truth of the Big Lie. On May 18, 2021 the New York Times reported on two opinion polls conducted by reputable firms. One poll in Arizona concluded that 78 percent of Arizona Republicans believe the Big Lie. A Monmouth University poll found that almost two-thirds of Republicans nationwide do as well. This may stem from the fact that we have sorted ourselves into like-minded communities. Republicans who believe the election was stolen from Trump might do so because they don’t know anyone who voted for Biden.

The Big Lie also fits the new conspiracism construct because it delegitimizes elections and related constitutional institutions. On January 6, 2021, our Capitol building was stormed by a violent mob for the sole purpose of interrupting the counting of Electoral College votes, the last step in confirming Biden’s election victory.  This rabble, fired up by the Big Lie, had utterly lost faith that the national election had been fair.

One is tempted to include the new state laws in Georgia and Texas designed to restrict early voting and absentee ballots as among the products of the Big Lie conspiracy. But I think this would be a mistake. These restrictions on access to voting were part of the Republican playbook before Trump and the Big Lie came along. In truth, these restrictive new voter laws have not been proposed as a remedy for any deep state “conspiracy” responsible for stealing the election from Trump.

Republican leaders are hoping that making it harder to vote in communities of color will make it more likely their party will prevail in elections. While the ultraconservative demographic reliably turns out to vote, this older, white voting group is an increasingly smaller slice of the voting public. Found mainly in rural areas, that demographic is falling behind a more liberal demographic in the cities. The handwriting is on the wall and some other Republican strategy besides weak attempts at voter suppression must be devised.

Restricting access to voting is just a tactic that will not yield big results.  What is the Republican grand strategy? Only a dramatic change in the way the public thinks about – or trusts – the electoral process can prevent the marginalization of the current Republican Party. If voters mistrust the electoral system, the effectiveness of the Democratic Party in the cities and among the educated might be derailed. Perhaps that dramatic change is what is the Big Lie really seeks to achieve — if we can’t beat them at the ballot box, let’s degrade the whole system. How’s that for a conspiracy theory?

Can Trump Pardon Himself?

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The stink from the pile of Trump’s pardons is palpable – it is the stink of corruption and abuse of power.  A high percentage of Trump’s pardons have gone to those with a personal or political connection to him.  Those receiving his favor include murderers, dishonest politicians, fraudsters, thieves, and liars. Still, it is widely believed that a president’s pardon power is unlimited, that he or she can pardon anyone for virtually any crime. The question of the moment, one that our nation has never had to answer, is whether a president can pardon himself.

The pardon power is a creature of the Constitution.  Article II, Section 2 states that the President “shall have power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” There is no limitation on self-pardons here. Yet the power to pardon has been exercised by presidents over 20,000 times and never once has anyone attempted to pardon himself.

Certainly, a self-pardon has been considered.  In August 1974 President Nixon met with senior staff to discuss options for concluding his presidency.  White House lawyers had prepared a memo in which they advocated the legality of a self-pardon and, according to Gerald Ford who was in the meeting, Nixon believed he had that power. Nevertheless, he resigned.

The strongest argument in favor of the power to self-pardon is the simple, textual one. The Constitution mentions pardons in only one place, where it seems to give a president plenary power to pardon.  In Schick v. Reed (1974), Chief Justice Burger wrote “we therefore hold that the pardoning power is an enumerated power of the Constitution and that its limitations, if any, must be found in the Constitution itself.”  It is noteworthy that the Court did not say “in the clause itself.”

There are only two limitations stated in the Pardon Clause – a president may not pardon in cases of impeachment or for state crimes.  This probably means that a president could not pardon himself for the crimes that are the basis of an impeachment proceeding against him.  Nothing elsewhere in the Constitution expressly forbids the power to self-pardon.  In such a case the rule of construction called expressio unius may apply. This rule holds that the expression of one limitation excludes any others not expressed.

But not so fast. The Schick case, still the leading case on the meaning of the pardon power, tells us that the pardon power is not quite complete and self-contained:

In light of the English common law from which such language was drawn the conclusion is inescapable that the pardoning power was intended to include the power to commute sentences on conditions which do not in themselves offend the Constitution . . . .

If we stop at a mere textual reading of the Pardon Clause, which the current Supreme Court might well do, we don’t reach the question of whether a self-pardon would offend the rest of the Constitution. That method of interpretation is called the structural approach.

Self-judging is a subset of self-dealing and the Constitution is full of limitations on self-dealing. Here are a few examples.  A member of Congress cannot simultaneously hold another federal office and cannot resign to take a job that was created, or the pay for which was increased, during that term of Congress. Congress cannot legislate a pay raise for itself that takes effect before the next congressional election. A president’s salary cannot be increased without an intervening presidential election.

Perhaps more to the point is the question of who presides at an impeachment trial.  When the president is tried in the Senate the chief justice presides, not the vice president who is obviously self-interested.  On the one hand he has been elected on the same ticket as the president and might wish the president to be acquitted for that reason.  On the other hand, the vice president would be elevated to president if the sitting president is convicted. The Constitution does not specify who would preside if the vice president were impeached but it certainly would not be the vice president himself.

But neither the textual nor the structural approach to interpreting the Pardon Clause can tell us whether there are inherent limitations in the term “pardon.” For that we have to adopt the approach called originalism, which looks at the how the Framers understood the term at the time it was used in the Constitution.

The Supreme Court has repeatedly stated that the primary source for interpreting the pardon power is the English common law known to the drafters at the time the Constitution was adopted. One should expect, then, that any limitations that existed at common law should be a part of the meaning of the term “pardon” and incorporated into the interpretation of the Pardon Clause, even though not expressed in the text of that clause.  This, indeed, has happened.

The president can issue a pardon at any time after a crime is committed, even before arrest or indictment. But no pardon can issue before a crime is committed. Otherwise, it would amount to an indulgence to commit the crime and be void. Another example is found in Burdick v. United States (1915), in which the Supreme Court ruled that a pardon is only valid if accepted by the defendant. Furthermore, acceptance of the pardon conveys acceptance of guilt, much as in the common practice of plea deals.  After Nixon’s resignation, President Ford gave him terms on which a pardon would be granted. One was an admission of guilt and a statement of contrition. Nixon finally said that he had been wrong in the handling of the Watergate scandal and that fair-minded people could consider his actions “intentionally self-serving and illegal.”

One common law pardon requirement has not yet been recognized by the Supreme Court, perhaps because it has never been properly raised — the requirement of specifying the crime being pardoned.  We know this requirement was part of the English common law just before the Revolution because it was clearly described in Blackstone’s Commentaries, the most influential treatise on law in the 18th Century.

In practice, the rule requiring specificity is followed to this day. For example, the Justice Department maintains on its website the details and actual text of each pardon Trump has granted.  Each one refers to specific crimes.  The Nixon pardon in 1974 is the one significant exception. It read that Nixon was being pardoned “for all offenses . . . which he . . . has committed or may have committed or taken part in” during the period of his presidency.  That pardon went unchallenged by Leon Jaworski, the Special Prosecutor at the time.

Now, imagine that Trump is about to pardon himself.  He is not likely to specify what crimes he is pardoning and certainly not inclined to admit that he has actually committed a crime.  Instead, he is most likely to use a self-pardon to insulate himself from further investigation and prosecution for obstruction of justice during the Mueller investigation and perhaps income tax crimes that may be revealed when his tax returns are disclosed.  Suppose he issues a general pardon of himself and his immediate family for “any and all federal offenses that are alleged to have been committed by him or them at any time preceding the date of the pardon.” Who can challenge the validity of that self-pardon, including its lack of specificity, in what context and to what effect?

The validity of a self-pardon cannot be tested unless Trump asserts it as a bar to prosecution for the crimes allegedly pardoned.  A political decision will have to be made by President Biden to commence a prosecution against his predecessor for federal crimes, perhaps committed while in office, and a legal decision will have to be made by the prosecutors that the arguments against the pardon are likely to prevail.  These are both substantial hurdles.

Much can be said against a sitting president pursuing a criminal case against his predecessor. The objective now should not be revenge, but rather to re-establish the guardrails and norms of democracy.  Our country is too polarized at this moment to absorb what would be interpreted by many as a political hit job.  If Trump is to be prosecuted, let it be by the New York authorities who apparently already have him in their sights.  His self-pardon would not block a state prosecution.

In England before the American Revolution there was never controversy over self-pardons because the king was thought to be above the law and incapable of violating it. But our Constitution rejected kings and kingly power.  It just seems wrong and contrary to our sense of justice for an elected official to be able to pardon himself. We often hear that no man is above the law, but if a president can pardon himself then he is the law.  The argument for commencing a prosecution against Trump, aside from bringing him to justice for his crimes, is to attack the idea of a presidential self-pardon at its first appearance so that the practice cannot take hold.

In summary, will Trump try to pardon himself?  I would bet on it. He has always been a norm-buster, particularly when it benefits him directly. Will he specify what crimes he has committed and what is being pardoned?  Unlikely. Will President Biden authorize a prosecution against Trump for federal crimes and attack the validity of the self-pardon?  I doubt it, but it depends on what evidence is developed and whether he receives a recommendation to do so from a special prosecutor.  What will the Supreme Court say about a self-pardon?  I am worried about the answer to that question, but it certainly would be an opportunity for the Court to establish once and for all that this is a country of laws and not strongmen.