Will the Courts Say Trump Can’t Be President Again? They Should.

In a number of states, activist groups have sued to keep Donald Trump off their ballots in the 2024 election for reason of Section 3 of the 14th Amendment, which bars from holding political or military office those who have sworn to uphold the Constitution but have then fomented insurrection .

Courts in a few states have so far sidestepped the issue or turned away the suits. A Florida judge ruled that the plaintiff lacked standing. The Minnesota supreme court left Mr. Trump on that state’s ballot saying it might take up the case only should he be confirmed as the Republican candidate. A Michigan judge stated that because Mr. Trump had qualified under state law to be on the ballot, the court could not remove him. Lawfare, a non-profit, non-partisan publication that keeps score, says more than a dozen more challenges are pending.

This month, a Colorado court was the first to base its ruling on the merits of the case and on Trump’s conduct on January 6, 2021. The 14th Amendment states that:

Anyone who “as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State” has taken the oath to uphold the Constitution but then “shall have engaged in insurrection or rebellion” cannot “hold any office, civil or military, under the United States, or under any State”.

Denver District Court Judge Sarah Wallace concluded that…

“Trump acted with the specific intent to incite political violence and direct it at the Capitol with the purpose of disrupting the electoral certification…engaged in an insurrection on January 6, 2021 through incitement… cultivated a culture that embraced political violence through his consistent endorsement of the same.”

Michael Luttig, a former federal judge of the U.S. Court of Appeals for the 4th circuit whom the Republican Party holds in high regard, said of Wallace’s finding that the former president had indeed incited insurrection, “You simply could not overstate the significance of this fundamental finding of constitutional fact and law”.volte-face
But in her opinion, Judge Wallace then reversed field, finding that the amendment does not pertain to Trump, citing “scant direct evidence regarding whether the Presidency is one of the positions subject to disqualification”. She was referring to the amendment’s list of those who had taken the oath.

Plainly, with that list the amendment is at pains to be widely inclusive, but in September, Michael Mukasey, George W. Bush’s last attorney general, wrote an op-ed in The Wall Street Journal aimed at giving Trump an escape route, arguing that the amendment did not apply to him because, when president, he was not “an officer of the United States”. The Constitution repeatedly refers to the “office” of the president as does the oath, but for Mukasey the word is short one letter.

Mukasey combs through the Constitution to make the case that “in other constitutional provisions” the term officer “refers only to appointed officials, not to elected ones”. Therefore Trump “didn’t take and thus didn’t violate an oath as an ‘Officer of the United States'”.

Judge Wallace doesn’t focus on “office” and “officer” but doubts “whether the Presidency is one of the positions subject to disqualification”.
She then deep dives to find her own way to exempt Trump. Because…

“Section 3 specifies that the disqualifying oath is one to ‘support’ the Constitution whereas the presidential oath is to ‘preserve, protect and defend’ the Constitution, it appears to the court that for whatever reason the drafters of Section 3 did not intend to include a person who had only taken the presidential oath.” [emphasis added]

Lawrence Tribe, professor emeritus of Harvard Law School and a recognized constitutional authority, says,

“Because Donald Trump used the words ‘preserve, protect and defend’ and didn’t use the word ‘support’, we can treat him as having taken the oath with his finger crossed. What does it mean to preserve protect and defend if not to support it?”

Luttig “can’t imagine the Supreme Court deciding this case on that frivolous argument.” As Tribe says, “The judge herself says she admits this sounds preposterous – that’s her word”.atmosfear
In the cases pending in other states, we can expect judges to latch onto Mukasey’s and Wallace’s evasions so as to wriggle free from being the ones to disqualify Trump.

In an America where a significant percentage have come to think, in keeping with Trump’s increasingly threatening rhetoric, that violence is an acceptable means of achieving desired ends, it is understandable that judges are diffident about ending the anointed one’s candidacy. Death threats against election workers, judges, prosecutors, lawyers, their wives, their children are intimidating in a nation that has lost its moral bearings. So the judiciary sets the Constitution aside in pusillanimous quibbles over an office holder not being an officer rather than following the intent of the amendment.

But at least Judge Wallace has laid down a decision that in part higher courts should have difficulty getting around. Professor Tribe ventures about each half of her decision:

“My suspicion is that having built a wall of fact and law so high that no appellate court could climb over it, a wall that established that Trump was guilty of engaging in disqualifying insurrection, she threw him a lifeline that was so thin, so threadbare, so likely to fall apart, that … no appellate court could uphold putting him on the ballot on that basis.”

But Tribe added that when Trump seeks review at the Supreme Court, “there, all guesses are off.”

If any case goes on appeal to the U.S. Supreme Court, we can expect them to duck. It is foregone (we will say) that the Court would not dare disqualify Trump, but we might at least be amused to watch the textualists squirm free of the unequivocal language of the 14th amendment. Per Mukasey, the occupant of the Oval Office was not an “officer”; everyone else was. Or an amendment passed immediately after the Civil War was only meant to keep southern insurrectionists out of government and should have no further application. Or that the Wallace interpretation has it right: Trump swore a different oath. Presidents defeated in an election who want to retain power are thus exempt and free to incite insurrection; all other malefactors do not have the privilege.

If Section 3 of the 14th does not apply to the incitement of insurrection that sent a mob of thousands to attack the Capitol, the seat of government, then that provision of the Constitution, like the ignored militia clause of the Second Amendment, has been made void. Another fragment of the Constitution’s intended bedrock will have been been chipped away.

Nov 24 2023 | Posted in Election | Read More »

Israel’s Justification for Besieging Hospitals and Schools Hits a Snag

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The Israeli Defense Forces (IDF) have long held that Hamas uses hospitals and schools for their command centers, they being off limits for attack or bombing according to the rules of war. That provides the military with justification for besieging hospitals and schools.

In past conflicts with Hamas, Israel countered their rocket strikes with bombing but not with invasion, so it lacked on-the-ground proof of Hamas using civilian facilities. When a week ago the IDF attempted to expose Hamas’s commandeering of hospitals, particularly Gaza’s largest, Al-Shifa, it got major media attention.

It did not go well. The military may be relieved now that the headlines have shifted to the hostage exchange, because the attempted proof of their theory was something of a bust.

Gaza’s Al-Shifa Hospital complex.

An IDF photo showed an entrance to a tunnel on the grounds of Al-Shifa but no one went below out of fear of booby-traps, so there was no proof of tunneling beneath the hospital nor the underground rooms that would be needed for a command center.

In a video, a soldier showed a small cache of weapons and a laptop found behind an MRI machine. That a Hamas militant would so offhandedly leave weapons about in so odd a choice of place suggested a plant. After three days at the hospital, the military refused press requests to tour the hospital, maintaining that a hospital active with patients, doctors, nurses was somehow not yet secure. When the press was finally allowed in to see for themselves, the size of the weapons stash had mysteriously doubled.

Another video displays a large trove of weapons and ammunition, but it was found in a car in the hospital parking lot. Other footage from days immediately after the October 7th attack shows what Israel says are Hamas militants rushing a man down the hospital’s corridor with another following on a gurney as proof Hamas controls the hospital. But the hospital treats all Gazans, including what may have been wounded Hamas gunmen or Israeli hostages, as Israel claimed they were.

There were “a lot of terrorists there,” Prime Minister Benjamin Netanyahu said, but “they fled as our forces approached the hospital.”

“We found a lot of weapons — a lot. We found a lot of ammunition. We found bombs. We found on level minus-two a command and control center of Hamas, with military encoded encryption.”

These were not shown to the media.

Doctors dispute the IDF claim of Hamas use of hospitals. Dr. Natalie Thurtle of Médecins Sans Frontières (Doctors Without Borders) said about the claim that Al-Shifa is a Hamas command center, “We’ve worked in Shifa for many years, We’ve never seen anything that has indicated that that is the case”. Dr. Ahmed El Mokhallalati, senior plastic surgeon there, says “They have found nothing”. Norwegian physician Mads Gilbert, who has worked at Al-Shifa for 16 years says there is “no evidence at all. If it was a military command center, I would not work there.”

Yet Israeli forces entered Al-Shifa with hundreds of patients and doctors still there. In a statement, the Palestinian Mission to the United Nations said Israeli soldiers were “terrorizing the thousands of civilians” sheltering on the hospital grounds and were “ransacking rooms and destroying equipment, beating medical staff who they interrogated at gunpoint”. Médecins Sans Frontières called on the “Israeli government to cease this unrelenting assault on Gaza’s health system.” Their statement said Al-Shifa, where their staff was still working, “has been hit several times, including the maternity and outpatient departments, resulting in multiple deaths and injuries.” Three other hospitals in northern Gaza and Gaza City are encircled by Israeli forces and tanks, in what a doctor told Al Jazeera was a “day of war against hospitals”. The U.N. Office for the Coordination of Humanitarian Affairs reports that 20 of 36 hospitals in Gaza are no longer operating, mostly for lack of fuel, which Israel did not allowed into Gaza for over a month.

The IDF ultimately ordered the evacuation of Al-Shifa, some of the patients in hospital beds or wheelchairs. Mohammed Zaqout, the director of the hospitals in the Gaza strip, said to al Jazeera, “I am telling you we were forced to leave by gunpoint”. The head of Al-Shifa said that Israeli forces gave them one hour to evacuate. The IDF denied issuing the order, saying they had made available a safe passage corridor for those who wanted to leave.

Having failed to prove that hospitals and schools are Hamas command sites, the Israeli Defense Forces nonetheless persist. In the West Bank, armored vehicles have surrounded four hospitals. Israeli soldiers have reportedly raided the Ibn Sina and East Jerusalem hospitals. The IDF is simultaneously laying siege to yet another Gaza medical facility, the Indonesian Hospital, which is now the sole remaining medical facility in northern Gaza. Israeli artillery fire has killed at least 12 people at the hospital, according to local officials.

Despite the IDF’s weak case, the U.S. administration has bought into the hospital story unquestioningly as has the media. National Security Advisor Jake Sullivan declared on CNN’s State of the Union, “You can see even from open-source reporting that Hamas does use hospitals, along with a lot of other civilian facilities, for command-and-control, for storing weapons, for housing its fighters.”

Newly Minted Speaker Flubs Israel Aid. Is Government Shutdown His Next Act?

Newly elected House Speaker, Louisiana’s Mike Johnson, stumbled badly in his first attempt at legislation by pandering to his far right extremists with a bill for aid to Israel that stood no chance of passage by an irate Senate.

Johnson chose to sever aid to Israel from another desperately needed tranche for Ukraine and, as one who prior to becoming Speaker said he was against further Ukraine aid, that suggests he intends to block any support of the embattled country’s fight to prevent annexation by Russia.

Perhaps we will someday be apprised of how Biden and the House arrived at $14.3 billion as the just right amount and why it is that the American taxpayer is to pay for Israel’s war when Prime Minister Benjamin Netanyahu ignores Biden’s entreaties to slow down his evisceration of Gaza at a cost of (today’s estimate) some 10,000 lives, more than 3,600 of them children according to the Gaza Ministry of Health. But for now we’ll stay with Mr. Johnson and his opening blunder.

Unlike the norm of emergency funding, Johnson tied strings to the $14.3 billion allotment by taking the equal amount from the $80 billion funding of the IRS in last year’s Inflation Reduction Act. Republicans have already wrested $20 billion from the original amount in their campaign to weaken IRS ability to collect taxes on income kept hidden by the their wealthy donors. By treating the IRS appropriation as a slush fund ripe for grabbing, Johnson claimed the Israel aid would be budget neutral. “We’re not just going to print money and send it overseas”, he says.

But the IRS is the sole branch of government that makes money. For every dollar the agency spends auditing someone in the top .1% income bracket — those taking in $9 million or more a year — the IRS unearths $6.30 in taxes avoided or evaded. For the top 1%, it’s $3.20. With $14.3 billion taken away, the Congressional Budget Office says the IRS would have to forego audits that would have brought in $26.8 billion. Johnson’s ruse would cost the government almost twice the amount of the proposed Israel assistance.

His sure to fail action has caused a logjam blocking all such aid at a time when it needs to be quickly settled because we are days from mid-November when the government again runs out of money. Like his Freedom Caucus, Johnson wants a reduction in spending as the fundamental requirement for continued funding and it’s a sure bet that they will not yield. The government shutdown will occur at a moment when the United States faces threats around the world unlike anything since World War II. second in line for the presidency

Johnson comes to office brandishing a rigid set of ideologies and a résumé that no one could have believed would be owned by the Speaker of the United States House of Representatives.
 He believes that the 2020 election was stolen by Joe Biden and the Democrats.
 His was the leading voice persuading other Republicans to believe that and vote to overturn the election results when Congress met on January 6, 2021.
 He was himself one of the 139 representatives who voted that our democracy should end that day with unelected Donald Trump seizing power and continuing as president.

This describes who every Republican in the House voted for as Speaker, who, as set forth in the Constitution, would become president of the United States should calamity befall the elected president and vice-president. All Republicans in the House voted for Johnson as who they think best fits that role.

Politico reports that throughout the period after the 2020 election “Johnson was routinely in touch with Trump, even more so than many of his more recognizable colleagues”. On January 5th, Johnson’s arguments were instrumental in persuading fellow Republicans to object to the counting of electoral votes submitted by battleground states with the goal of usurping the presidency from Biden.

Indicative of just how insurgent Johnson has been, after the election, he led an amicus brief in support of Texas Governor Greg Abbott asking the U.S. Supreme Court to overturn 2020 election results in four other states — Georgia, Michigan, Wisconsin, and Pennsylvania. Signed by 126 GOP lawmakers, the brief sought to invalidate the votes of millions of Americans in order to keep in power Johnson’s preferred choice of president. The Court dismissed the lawsuit on the plainly obvious grounds that no state can overrule the election results of another state.

When ABC News reporter Rachel Scott asked, “Mr. Johnson, you led the efforts to overturn the 2020 election results. Do you stand by…”, the group gathered around Johnson laughed, razzed the reporter, and North Carolina’s Virginia Foxx, decreeing that the press had no right to ask questions now that the extreme right ruled the House, shouted “Shut up! Shut up!”. “Next question”, said Johnson, smiling.

the litmus test

The hard-right faction in the House put forth only candidates for Speaker that gained Donald Trump’s approval. The primary
Trump and Johnson at the time of Trump’s second impeachment trial.
requirement was that an aspirant agree that the 2020 election was rigged and stolen. That eliminated Minnesota’s Tom Emmer just hours after he had won the most votes in a crowded field. Trump bashed Emmer on Truth Social calling him a Republican in name only (RINO) because…

“He never respected the power of a Trump Endorsement, or the breadth and scope of MAGA — MAKE AMERICA GREAT AGAIN!”.

So runner-up avid Trump supporter Michael Johnson rose to the top. Trump said Johnson will “be a great speaker of the House, and we were very happy to have helped,” adding, “I think you’re going to be very proud of him.”

Johnson’s personable demeanor masks a determined drive to make an America more to his liking. Out of the 435 lawmakers that make up the House, Johnson was rated 429th as likely to work together with opposite parties according to Georgetown University’s School of Public Policy.

The Speaker gets to control which bills, voted out of committee, make it to the House floor for vote. The worry is that Johnson will block all but the most extreme conservative measures. Of still greater concern, given Johnson’s demonstrated interference in the 2020 election, is that he will use his office to overturn the 2024 election should Trump lose. What has Democrats in a state of shock is that, instead of some pacifying middle-ground candidate elected Speaker, they suddenly find that, a year before the election, Donald Trump has won control of the House of Representatives.

Johnson is staunchly anti-abortion, anti-LGBTQ rights, anti-union, anti-immigration, anti-democracy. Here’s what he said about democracy:

By the way, the United States of America is not a democracy…You know what a democracy is? It’s two wolves and a sheep deciding what’s for dinner. You don’t want to be in a democracy, Ok? Majority rule — not always a good thing”.

The non-profit Susan B. Anthony Pro-Life America gives him an A-plus rating. He worked for Alliance Defending Freedom (ADF), the Christian organization behind dozens of the most restrictive abortion laws and pieces of anti-LGBTQ legislation in the country. ADF was key in the U.S. Supreme Court’s reversal of Roe v. Wade. Johnson called that “a great, joyous occasion”, later writing, “We will get the number of abortions [in Louisiana] to ZERO!!”. With policy of abortion transferred to the states, Johnson has introduced a bill that would make it a federal crime to transport a minor across state lines for an abortion.

In keeping with certain southern states wishing to codify “personhood” laws that were halted by the Supreme Court, which ruled that legal personhood begins only at “viability” (around 24 weeks of pregnancy when a fetus can survive outside the womb), Johnson testified in the 2021 Texas hearing on its post-six-week abortion ban that “when a woman is pregnant, science tells us that the new life she carries is a completely separate and full new human being from the moment of fertilization”. Science does not tell us that: it tells us that early in pregnancy the physical reality is far from fully human. Johnson’s is a religious notion.

The new Speaker has made some puzzling statements about abortion. In 2015 he said “when you tell a generation of people that life has no value, no meaning, that it’s expendable, then you do wind up with school shooters.”

Johnson is for cutting trillions of dollars from Social Security and Medicare. He says the retirement age for Social Security should be raised to 69 from today’s 67 (for those born in 1960 and later). He thinks Medicare, for which payroll tax collections are inadequate to serve the increasing elderly population, should adopt former House Speaker Paul Ryan’s idea that Medicare become a “premium support” system where seniors would buy, with financial assistance where needed, insurance through a regulated exchange. In other words, for Johnson, Medicare should be eliminated as such and become no more than a private sector insurance program.

Given Medicare as currently exists, he said during a House hearing that women should have more children who would become “all those able-bodied workers in the economy” paying into the entitlement programs, a plan for women’s role redolent of The Handmaid’s Tale.

That goes along with Johnson’s seeming objection even to contraception. When after Roe v. Wade was overturned and Justice Clarence Thomas hinted that rights to privacy such as the use of contraceptives could be next, the House passed the Right to Contraception Act to block such a step, but Johnson voted against it.

Mr. Johnson has little compassion for the LGBTQ community, as might be expected, calling homosexuality “sinful or destructive — ultimately it’s both”. He has advocated demonstrably ineffective conversion therapy as remedy. He wrote an objection to 2003’s Lawrence v. Texas, the Supreme Court ruling that overturned state laws criminalizing homosexual activity between consenting adults. He defended Louisiana’s same-sex marriage ban before the Louisiana Supreme Court.

He is of course averse to same-sex marriages, calling them in op-eds “counterfeit legal arrangements” pushed by “radical homosexual advocacy groups” and thinks “Homosexual relationships are inherently unnatural and, the studies clearly show, are ultimately harmful and costly for everyone”. Every group — “polygamists, polyamorists, pedophiles” — will claim the right to equal protection and ultimately “there will be no legal basis to deny a bisexual the right to marry a partner of each sex, or a person to marry his pet”. For Johnson, “homosexual marriage is the dark harbinger of chaos and sexual anarchy that could doom even the strongest republic.”

Johnson has co-sponsored a bill in the House modeled after Florida’s so-called “Don’t Say Gay” law. It would block federal funding to any school district or organization that exposes a child younger than 10 to the topic of gender identity or sexual orientation. For older youths he co-sponsored a bill that would make providing gender-affirming care — the term for counseling those who want to change from their biological gender — a crime if rendered to anyone under age 18. In that, he would find some bipartisan support to the extent that many across the political spectrum believe life-altering changes such as genital surgery should not be decided for or by people that young.

Mr. Johnson yielded not at all on the Republican position that guns are more important than human life, saying after the Maine massacre,

“The problem is the human heart. It’s not guns. It’s not the weapons…This is not the time to be talking about legislation.”

There have been 566 mass shootings in 2023 so far but now is “not the time”. The shootings are so frequent that according to Johnson it can never the time.

Beyond all else, Johnson is religious —a self-described evangelical Christian Southern Baptist. Johnson and wife Kelly entered into a “covenant marriage”, a legal construct offered only in three states — Arizona Arkansas, and their Louisiana — that imposes stricter requirements to prevent divorce.

Interviewed by Sean Hannity on Fox News after his election, Johnson said:

“Someone asked me today in the media, they said, ‘Curious, what does Mike Johnson think about any issue under the sun?’ I said, ‘Well, go pick up a Bible off your shelf and read it. That’s my worldview, that’s what I believe.”

That raises the worry we now have as House Speaker a Christian Nationalist, a movement that fundamentally contends America should be governed by Christian doctrine. That’s not just a benign hope. It shrouds a militancy that few are aware of. We covered this ongoing crusade exactly a year ago in “Christian Nationalism Wants to Take Over Your Country” which you can find here.

He speaks out against the “so-called separation of church and state”, claiming, “The founders wanted to protect the church from an encroaching state, not the other way around”. True enough that the First Amendment says, “Congress shall make no law respecting an establishment of religion” but that simultaneously keeps religion out of government. Not for Johnson.

He espouses the familiar conservative tenet that the “drugs and peace and free love and all that” of the late 1960s in America made for “the undermining of the foundations of religion and morality”, normalizing no-fault divorce, feminism, the sexual revolution, and in 1973’s Roe v. Wade Supreme Court decision whereby “the state government sanctioned the killing of the unborn”.

“All these things happened because as collectively as Americans, we began to get together in growing numbers and thumb our nose at the creator and say, ‘We don’t believe that anymore, we’re rejecting the founders natural law philosophy in favor of moral relativism’…Now, what we tolerate in moderation our children excuse in excess”.

When he says…

“We’ve taught a whole generation — a couple generations now — of Americans, that there’s no right or wrong, that it’s about survival of the fittest”

…it signals a rejection of the teaching of evolution. Johnson represented Ark Encounter, which built a full-sized replica of Noah’s Ark in Kentucky, and then the ministry Answers in Genesis that proclaims the absolute truth and authority of Scripture. Both are undertakings of Ken Ham, notable for his belief of creationism — that God designed all of life as opposed to evolution’s trial and error — and who insists that men walked with dinosaurs because Earth is only 6,000 years old.

Those opposed, said Johnson in an op-ed, were “a few radical secularists and others”. We may have as Speaker someone who would like our America to become a theocracy?