This week, two branches of the government of the United States, as established by the Constitution of the United States, face clear and present dangers – actions of contempt – that threaten the rule of law in the United States
Contempt challenges for congress and the supreme court
The House of Representatives will begin the process of punishing, by seeking criminal prosecution, a man named Stephen Bannon, a former aide to President Donald Trump who continued to serve as an unofficial advisor in the last years of Trump’s term.
Bannon was with Trump and in conversations with Trump in the days leading up to the deadly insurrection on January 6, whose purpose was to stop the certification by Congress of the 2020 presidential election and the peaceful transfer of power to Joe Biden, who won the election.
The House of Representatives has established a Select Committee to investigate all aspects of the insurrection: what happened, who was responsible, what plans were in place to protect the Capitol, what was the chain of command and steps taken to send forces to put down the violence and clear the Capitol.
The Select Committee also wants to know what the President did that day, who he talked with and what was said, what decisions were made, what his intentions were. Both the Vice President and the Speaker of the House – the next officials in the line of succession to the President – were targets of the mob.
Bannon’s testimony is crucial to understanding the events of that day and what Trump did that day
Bannon is refusing to testify, citing orders from Trump that he not cooperate, with Trump citing “executive privilege”: the ability of a president to shield officials and documents from investigation.
But the United States has but one president at a time. The only president who can assert executive privilege is the one in the Oval Office. And President Biden has waived any assertion of executive privilege for the purposes of the Select Committee’s work.
Bannon is happy to talk to the media, and to authors of books about Trump, and is free to give them his account of what he knows of what Trump was doing to overturn the election. But he will not comply with a subpoena from the House Select Committee to give evidence.
The Select Committee will find Bannon in contempt for refusing to testify. The House will vote a resolution seeking action by the Justice Department to enforce the Committee’s subpoena to Bannon through a criminal prosecution for his contempt.
Why is this important?
Under the Constitution, the Congress is a co-equal branch of government, equal in stature to the Executive. Congress’ constitutional responsibility is to ensure that the Executive Branch conducts its business in conformity with the laws Congress has passed.
If Congress cannot oversee activities by Executive Branch officials and those who engage with it, Congress cannot fulfil its duties, meaning that there is no check and balance on what the president does.
With only a handful of exceptions, Republicans will vote against this contempt proceeding. Which means they are voting to permanently weaken the Congress with respect to the President.
Which means that, should Republicans take control of the House, there will be a precedent for their oversight work to be stonewalled. Which means that presidential abuses of power can easily be beyond the reach of the rule of law under the Constitution.
The Supreme Court will receive an urgent appeal from the Department of Justice, asking to overturn a lower court decision that removed an injunction on the new abortion law of Texas. That law bans abortions after 6 weeks and enables any citizen to sue – and get a $10,000 bounty if successful – anyone who provides an abortion or assists in an abortion (including anyone who drives a woman to a health clinic for an abortion that is illegal under the Texas law).
The Texas statute on its face is plainly, inescapably unconstitutional under landmark Supreme Court decisions in 1973 and 1992 that established abortion as a woman’s right to so choose under the Constitution. As the New York Times explains,
Supreme Court precedents prohibit states from banning abortion before fetal viability, the point at which fetuses can sustain life outside the womb, or about 22 to 24 weeks into a pregnancy. That makes the Texas law unconstitutional under the controlling precedents.
The unconstitutionality of the Texas law could not be plainer.
In addition, it is a tenet of jurisprudence that judges be guided by the doctrine of stare decisis. A legal policy unit at Cornell Law School describes the doctrine:
Stare decisis is Latin for “to stand by things decided.” In short, it is the doctrine of precedent.
Courts cite to stare decisis when an issue has been previously brought to the court and a ruling already issued. According to the Supreme Court, stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” In practice, the Supreme Court will usually defer to its previous decisions even if the soundness of the decision is in doubt.
Trump appointed three justices to the Court during his term, giving the Court a solid conservative majority
All were selected with the belief that they could – and likely would – vote to overturn Roe v Wade, the bedrock abortion rights decision. In the hyper-intensive atmosphere involving the confirmations of now-Justices Neil Gorsuch, Brett Kavanaugh and Amy Comey Barrett, they all pledged respect for stare decisis.
We are about to fund out, as the Supreme Court considers the Texas case, and also in December a Mississippi case outlawing abortion after 15 weeks, if this Supreme Court will overturn abortion rights.
And we will therefore find out whether this Supreme Court also has contempt for the rule of law.
These challenges test how well America’s governing institutions are holding up under the immense strains of the Trump presidency. And how strong governance truly is in the US right now.
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Trump’s campaign tactic – debase and disgrace the legal process
Donald Trump, former president of the United States, hated Arraignment Day I in Manhattan two months ago, the first time a former president had been criminally charged.
Trump was being forced against his will into a proceeding he had utter contempt for. He was being arrested and fingerprinted and photographed under an indictment under the jurisdiction of Manhattan in New York City for allegations of hush money payments and fraudulent bookkeeping practices to conceal criminal activity. Trump heard the charges read out against him and he entered a plea of not guilty.
Trump had a terrible day. Trump wore a scowl throughout. His countenance was fearsome. What Trump hated most about his arraignment in New York is that he had to sit at a table with his counsel side by side with him — equal to him — and with the judge above him looking down on him. Trump could not control the discussion and could not interrupt to make his points.
Trump was subordinate to the judge. He was subordinate to no one as president.
Arraignment Day II
Arraignment Day II in Miami will be worse from Trump, even more stressful. The charges are substantially more serious: the alleged violation of federal criminal statutes involving the alleged mishandling and illegal possession of classified documents, lying to legal authorities, and obstruction of justice. Potential penalties run to years in prison and millions of dollars in fines.
Trump throughout his business life had always crafted his affairs to avoid being a defendant. But in his term in office, he was caught up in it big time. He was a defendant in two impeachment trials – again, unprecedented events – and left office in disgrace.
But Trump does not feel disgraced. He never does. Trump does not have a reverse gear. He never retreats. Never admits. Never concedes. Never yields. Trump is never embarrassed. Trump never feels ashamed. When something goes wrong, it is always the fault of someone else.
Bill Barr SLAMS his former boss:— Republicans against Trump (@RpsAgainstTrump) June 11, 2023
“He’s not a victim here. He was totally wrong that he had the right to have those documents. Those documents are among the most sensitive secrets that the country has…He had no right to maintain them and retain them”pic.twitter.com/VViNFpwbzt
And Trump never repents.
Trump can feel this way because Trump is waging war on behalf of his armies in “the final battle” for the future of the county. In his first, fiery post-indictment speech in Georgia, Trump said, “They’ve launched one witch hunt after another to try and stop our movement, to thwart the will of the American people. In the end, they’re not coming after me. They’re coming after you … “Either we have a Deep State, or we have a Democracy…Either the Deep State destroys America, or WE destroy the Deep State.”
It is a powerful formulation, and his true believers love it.
Hours later, In North Carolina, Trump mainlined his distilled message for the Republican crowd:
“We are a failing nation. We are a nation in decline. And now these radical left lunatics want to interfere with our elections by using law enforcement.
It’s totally corrupt and we cannot let it happen.
.@RepDanGoldman: "Donald Trump believed the law does not apply to him, and that he would do anything he could to conceal and maintain possession of highly, highly classified national security information that would jeopardize our national security." https://t.co/IfX8bV4EVk pic.twitter.com/Gvjv8aNFkn— The Hill (@thehill) June 11, 2023
This is the final battle.
With you at my side we will demolish the Deep State.
We will expel the warmongers from our government.
We will drive out the globalists.
We will cast out the communists.
We will throw off the sick political class that hates our country.
We will roll out the fake news media.
We will defeat Joe Bide and we will liberate America from those villains once and for all.”
Any lesser mortal would be staggered by these events. Any other presidential candidate would be driven from the race. But not Trump.
Debase and disgrace
Trump is using the same playbook today as he successfully triggered after being charged in New York: debase and disgrace the legal process by terming it completely political. Trump said the federal indictment is “election interference at the highest level.”
Almost every other Republican running for president has adopted this line, insulating Trump from pressure to leave the field.
Trump’s chief opponent, Florida Governor Ron DeSantis said after these indictments: “The weaponization of federal law enforcement represents a mortal threat to a free society. We have for years witnessed an uneven application of the law depending upon political affiliation.”
Republican congressperson Nancy Mace: “This is a banana republic. I can’t believe this is happening.” Rep. Marjorie Taylor Greene: “Democrats are arresting their political enemies. and they work together in their corrupt ways to get it done.”
Trump is using his affliction to raise millions of dollars from his base.
Trump will likely face Arraignment Day III in Georgia in August. A state prosecutor is expected to charge Trump with criminal interference in the certification of Georgia’s vote for Joe Biden in the 2020 presidential election.
As of now, there is no sign of cracks in Trump’s support among Republican voters. There is no surge to another candidate. What remains to be seen is whether Republican voters, as they see Trump spend his days in courtrooms and his evenings at rallies around the country, reach a conclusion that this is a spectacle too far, too much to bear, and that they want to turn to another conservative populist who stands for them in the political trials— and not the criminal trials – of 2024.
Donald Trump’s legal woes will serve him well
It’s not often that a U.S. President faces federal indictment, but if it’s going to happen to anyone, it might as well be Donald Trump first.
The news that Donald Trump is facing a federal investigation over the removal of secret documents from the White House in 2021 came as no surprise.
Keen watches of the Washington soap opera have seen this playbook before, albeit in a different form.
There is no doubt that Donald Trump is a Washington outsider. But as seriously damaged as he may be (thanks to the events of January 6), his support base has only grown whenever he faces scrutiny.
For his supporters, his legal woes mirror their own relationship with the government – a giant, unfair beast that picks and chooses its fights.
Trump is accused of storing sensitive documents—including those concerning matters of national security—in boxes, some even in a shower.
The documents were seized last August when investigators from the FBI executed a search warrant at Mar-a-Lago.
The Department of Justice has historically avoided charging people who are running for public office. Whether they should do that is a debate for another day. But it’s happening now. And it’s making it all too easy for Trump to claim there is a concerted campaign to get him away from the White House.
Trump exposed the deep state. IF they exist, they probably don’t want him back in power. Whether they exist doesn’t matter really, because plenty of Trump’s supporters agree with him, and believe the secret state is working against them. Call it QAnon, call it a conspiracy – it doesn’t matter in a democracy.
The DoJ now has to go all in. Failing to secure a conviction would be a serious embarrassment for the department.
This is the second time Trump has been indicted in recent months, yet the opinion polls show he only increases his popularity among MAGA and Republican voters. It leaves the Republican party in a difficult position. Support their leading candidate or support the law?
As other Republicans rallied around the embattled candidate, Trump held on to his loyal base of supporters.
For the Democrats, and for Biden, another reality will soon sink in – if Trump becomes President, and they lose office next year, how will a Trump-run DoJ deal with them?
Broadly, the tit-for-tat one-up-manship of U.S. politics is breaking tradition and potentially breaking the country.
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