Trump’s fate depends on Court he picked

 

Gordon L. Weil

Donald Trump got the Supreme Court he wanted. 

He will now discover how it will make its way between solid conservatism, political partisanship and the historical opportunity to determine the presidential election, possibly costing him a return to the White House.  The Court’s reputation is at stake.

This moment recalls the Court having picked the president in 2000, when it handed George W. Bush a narrow victory over Al Gore.

Trump faces in 2024 more major legal challenges than all previous ex-presidents together.  The biggest questions could either end his chances or give him a critical boost.

The latest case involves the Colorado Supreme Court decision that he cannot run in the Republican primary there because he participated in an insurrection against the U.S., culminating in the attack on the Capital on January 6, 2021.  The Fourteenth Amendment to the Constitution bans from federal or state office any office holder involved in an insurrection.

The Colorado court examined three questions.  First, does the president hold an “office” covered by the Amendment?  Second, was January 6 an insurrection or merely a riot?  Third, did Trump’s actions and statements constitute participation in an insurrection?  Colorado said “yes” to all three and ruled Trump off the ballot.

If the Supreme Court majority disagrees with the Colorado court on even one of these questions, keeping Trump off the ballot anywhere almost certainly would fail.

A second key case involves the Trump claim that he is immune from prosecution for virtually anything he did while president.  In a 1974 case involving Richard Nixon, still president at the time, the Court ruled that his immunity did not extend to acts beyond his official duties.  Were Trump’s efforts to undermine the state-certified electoral votes a part of his presidential duties?

If the Supreme Court gives Trump absolute immunity, the federal case against his alleged constitutional violations, being heard in Washington, would be severely damaged.  If it denies him full immunity, it might in effect be deciding the case against him by eliminating his best defense.

These two cases could deal with most important legal challenges to his campaign.  But they would not necessarily affect the federal case in Florida about his taking top secret documents with him when he left Washington, the Georgia case about his election interference there or the New York civil case about his providing false financial information.

The media is fond of noting that Trump’s re-election effort seems to be unharmed by the many cases brought against him.  Of course, he has not yet been finally convicted of anything relevant.  And the torrent of cases, whatever the justification for their timing, can readily appear to his supporters as an opposition vendetta.   Will final court decisions change that?

If the Supreme Court acts as courts often do, it will seek to decide the bare minimum necessary and leave alone other questions.  If it is a more political than judicial body, it could be expansive and do Trump a lot of good (or harm, though that’s not likely).

In the Colorado case, it might decide that insurrection meant the Civil War when the Amendment was adopted, but that it has not otherwise been defined.  Colorado alone cannot create that definition; that’s for Congress to do and it hasn’t.  Trump remains on the ballot.

In the immunity case, the Court could decide against Trump, based on the Nixon precedent.  The former president accepted that adverse ruling, even though it meant he was likely to be convicted in the Senate by the votes of his own party, leading him to resign.

The Court probably understands that a conservative body denying Trump his best protection would send a strong message to his supporters that he may have violated the law.  By allowing the Court of Appeals to rule first, the Supreme Court may rely on the lower-court ruling, protecting itself from seeming to be simply a partisan player.

Taking action affecting Trump’s political future puts pressure on the Court.  Senate Republicans turned against Nixon, showing that punishing a president must be bipartisan.   But, with few exceptions, GOP senators did not reject Trump after his second, overwhelmingly partisan impeachment.  The Court, like the Senate, must now make similar decisions.

Advocates asking the Court to harshly judge Trump by interpreting the Constitution and laws to punish him may be short-sighted. Whatever happens to him could happen to any successor.

The Constitution, though much revered, is much distorted by partisan practice.  The Court has sometimes shared in the responsibility for that.   Now it faces tough judgments.  The answer about whether there was an insurrection cannot be found in the law. It will be the judgment of just nine, unelected people.

At their core, the Trump cases this year should turn not only on his actions but also on protecting the Constitution.

 

Defense bill, COP 28 mislead people

Gordon L. Weil

A funny thing happened to the promise made by the COP28 environment conference to “transition” away from fossil fuels.  You know, that’s the stuff that makes most of our cars go.

It went out the exhaust pipe when it encountered the recent U.S. defense spending bill that will lay out tens of millions for a new parking garage at BIW.

The international community has set a target of limiting the increase in the world’s temperature to 1.5 degrees Celsius above the pre-global warming level. According to science, if this limit is not achieved, the quality of life on Earth is harmed.  Accomplishing this goal requires a reduction in the use of fossil fuels and their eventual elimination.

The most effective way to cut gasoline usage is to drive less.  Replacing private vehicles by mass transportation, including car pooling, would cut down on total auto use and emissions that cause global warming.  Yet federal money encourages private vehicles instead of developing more and better mass transit facilities.

At the same time as the U.S. advocates the fossil fuel phase-out, the defense bill supports motor vehicle usage.  Politicians may talk a good game, but they prefer to cater to our immediate wants instead of our long-term needs.  That’s not how leadership is supposed to work.

Unfortunately, in reality, building a new BIW parking garage to encourage commuting does not conflict with the COP28 outcome.  Its so-called transition from fossil fuel includes a raft of ready-made excuses for not making the goal.  Besides, the transition would only deal with energy production.  It doesn’t touch motor vehicles.

COP28 took days of negotiation to come up with just the right language that could both make it appear that the world cared about global climate change and satisfy the oil producers who hovered over the proceedings.  The supposedly successful result showed how clever diplomacy works to produce words without action.

Not only was the defense appropriations bill backing the garage right in line with this do-nothing policy, but the bill itself represented much of what’s wrong with politics in Washington.

The federal budget consists of three parts: mandatory, discretionary and interest. The mandatory portion accounts for a majority of the budget and covers Social Security, Medicare and other statutory programs.  Interest includes the payments on government debt incurred to cover outlays that exceed tax revenues.  Discretionary spending has two elements: military and non-military.

The defense spending bill covered the military piece.  It was supported by a majority of each party.  The basic political promise of almost all candidates is “jobs, jobs, jobs,” and the bill helps them keep that promise.

The bill is like a Christmas tree, with something under its branches for every state.  Congress often tries to gift wrap items that really have little to do directly with national defense and include them, because the passage of this bill is a virtual certainty.  This is done by limiting them to the defense establishment.

The costs of  BIW garage might ordinarily be covered by the company, the state or the city or all of them together rather than by taxpayers across the country.  Of course, Mainers pay for such benefits to other states.

Under the Democrats, Congress had tried to keep military and non-military spending roughly equal.  After 9/11,  Republicans successfully trimmed non-military outlays while enhancing military funding.

The multi-faceted military budget is contained in a single bill, making it possible to enact questionable items, safe in the knowledge that few in Congress will want to risk seeming to oppose defense.

The garage is a good example of moving some non-military spending into the better protected part of the budget.  Spending that might be challenged in non-military bills and even labeled as socialism is not disputed when it is targeted at defense personnel.

The GOP insists that non-military spending should be covered by many separate bills, making it easier to target cuts in programs similar to those that slip into the defense bill.

The defense spending bill united both parties, though extreme liberals and extreme conservatives joined in voting against it.  Surprisingly, many of them shared the same reason for their opposition.  They wanted to halt the authority of the federal government to spy on communications by Americans.

While the vote on the defense bill looked like a rare case of bipartisanship, broad support for military spending has never been in doubt.  The political risks of opposing it are too great and the benefits for all states are too tempting.  The government’s surveillance authority would have to be reviewed later.

In the end, both COP28 and the defense spending bill were hailed as victories in the self-congratulatory statements of the people who made the deals.  Perhaps they hope we won’t look at them too closely.  

Biden versus Trump? Not so fast.

Gordon L. Weil

Here is the conventional wisdom for 2024.

Joe Biden and Donald Trump will face off as their party’s nominees for the presidency.   The main issue in the campaign will be Trump himself.  The nominees will be selected soon, making most of the year a two-person political war.   Unless a realistic third-party spoiler pops up.

Trump will try to vindicate his claim that he really won in 2020, fend off negative outcomes in his court cases, and gear up a more authoritarian form of government.   Biden will try to save democracy from Trump and to shift the focus to his opponent and away from his aging self. 

The election will be about the people running far more than their policies, good or bad, or their proposals.  The outcome will be close because the electoral vote favors Trump over Biden.

We can count on this.  The polls say so.

As the old song goes, “It ain’t necessarily so.”  As plausible alternatives, here are some unconventional thoughts, if not wisdom.

For the Republicans, the campaign is likely to be a last ditch battle for the remains of the party.  The party machinery has been taken over by Trump, and his backers use it to maintain tight control and defeat traditional Republicans.  We see a divided House GOP delegation that is reluctant to oppose Trump.

For the GOP traditionalists, the fight may be now or never.  They will not form a third party, but will try to return their party to its usual, conservative and constitutional character.   To do this, they need to get behind an alternative to Trump and that looks increasingly like former South Carolina Gov. Nikki Haley. 

The problem for any Trump challenger is money.  Usually, if candidates don’t fare well in early primaries, their backing dries up and they must drop out. But Haley has backing from the Koch political organization, among the wealthiest in the country. She could hold on past early weak primary finishes.  Then the momentum could shift.

Meanwhile, former GOP Rep. Liz Cheney will be trying to elect a Democratic House.  Yes, true.  If the presidential race is close, it could be tossed to Congress, as Trump tried to do last time.  Under Democratic control, he could be blocked.  When a conservative like Cheney will go this far, it’s clear the war for the GOP is on.

Add to that the impact of any court decisions adverse to Trump.  So far, there’s no sign that his standing has been hurt by charges against him.  But verdicts and their cumulative effect are still ahead, to say nothing of Trump’s intemperate reactions.

Biden has suggested he might not be running if it were not for Trump.  Were Haley to succeed in having a real chance at the nomination, she could undercut both Trump and Biden. Not only would Biden no longer need to stay in the race, but he might poll even less well against Haley than against Trump.

Democrats back Biden because they ardently oppose Trump and believe that their incumbent president has the best chance of a repeat win.  But, if the GOP leans toward a younger candidate and a woman, the need for Biden might melt.  Haley’s progress could suggest that a younger Democrat who is a woman would be a better option.

Democrats like most others see Biden as being too old.  Minnesota Rep. Dean Phillips is challenging him in early primaries because he thinks Biden is too old to win.  He could garner votes from Democrats who agree.  He could not win the nomination, but he could open the way to contested primaries.

In that case, Vice President Kamala Harris would likely face competition, though nobody wants to undermine the Biden-Harris ticket now.  One serious possibility could be Michigan Gov. Gretchen Whitmer who rebuilt the Democrat coalition there even in the face of death threats.

The expected response to this thinking is that it’s already too late.   The primaries will begin soon and Trump and Biden will quickly nail down their nominations.  But that fails to understand what happens in primaries.  Presidential candidates are not selected; convention delegates are elected.

If conventional wisdom turns out to be wrong, national political conventions could revert to selecting nominees not merely serving as political rallies.   The nominees could be selected by elected state delegates in open votes.  These political “Super Bowl” playoffs alone could help revive the American voter’s connection with the election process.

Of course, these alternate scenarios might well not happen.  But it’s important to understand that the messages from polls and pundits we are now getting may also not happen.  This campaign is for high stakes and is only based on the character of two old men.

Wisdom suggests there are some major political surprises ahead and they won’t be conventional. 

Gaza, COP28, Trump campaign: the subtexts

 

Gordon L. Weil

Daily news reports hide what may be the real news.

By focusing only on the day’s events, we may be misled and miss the underlying reality. This possibility arises on the most central issues these days.

Most important is the war between Israel and Hamas, a terrorist group. Nothing good can be said about Hamas, which is dedicated to the elimination of Israel by the use of terrorism. Israel is right in trying to eliminate it as nearly completely as possible.

A vast majority of Palestinian Arabs in Gaza and the West Bank are not affiliated with Hamas. Yet, in Gaza, Israel justifies killing noncombatants, including children, and destroying cities as the most effective way to destroy the terrorist leadership.

U.S. Defense Secretary Lloyd Austin tried to explain to Israel the basic error in this policy. “In this kind of a fight, the center of gravity is the civilian population. And if you drive them into the arms of the enemy, you replace a tactical victory with a strategic defeat,” he said. Israel maintains that it tries to avoid civilian casualties, a claim denied by observable facts.

Amid speculation on the future of Gaza after the war, one possible answer is overlooked. Israel might want the Arabs out of Gaza so the area could become incorporated into Israel – part of the one-state solution of the Israel-Palestine conflict favored by powerful right wing forces in Israel. To them, leaving residents of Gaza no safe place to live could make sense.

Unless all Arabs are forced out of Israel-Palestine in pursuit of this policy, Austin’s warning must be taken seriously. The area could stand now at the beginning of a prolonged armed conflict. It’s possible that the only way to stop it would be for the U.S. to get much tougher with both Israel and Hamas.

Suppose the leaders of major crime organizations called a summit meeting, inviting the police and FBI, to come up with a plan to eliminate organized crime. At the end of the meeting, the participants could issue a statement describing a phase-down. Innocent people who had suffered because of previously lax crime enforcement would receive compensation.

That’s more or less what has happened in the international climate summits each year. World opinion is supposed to be impressed by high-level commitments made by top officials to slow global warming and aid the innocent. Yet, the use of coal and oil increases. On the surface, lofty goals are shared; in practice, targets are missed. In fact, they are not even seriously pursued.

This year’s COP 28 summit may be the worst. Dubai’s Sultan al Jaber, his country’s oil chief, is the COP chair, but has said, “there is no science out there, or no scenario out there, that says the phase-out of fossil fuel is what’s going to achieve 1.5.” That’s the target limit for global warming this century in Celsius degrees. It has no chance of happening.

At this meeting the clash between al Jaber’s environmental role and his efforts to sell oil reveal the true nature of environmental summits as oil industry trade shows. It’s so blatant that U.N. Secretary General Antonio Guterres rejected al Jaber’s proposed climate deal, because it “says nothing about eliminating emissions from fossil fuels.”

Donald Trump runs for president and displays great confidence in polls suggesting that he would easily win the Republican nomination and defeat Joe Biden in the presidential election. While most presidential campaigns offer agendas and embody the views of their party, Trump’s GOP has no platform.

His campaign is not about issues, which may explain why he has avoided debates. Trump’s campaign is about Trump. Beating Biden could serve as proof that he won the 2020 election. Biden now signals that he runs mainly to defeat Trump, as if to finally nullify claims about the last election. He would also protect against Trump’s planned vendetta against his opponents.

Facing major criminal trials that could complicate his return to the White House, Trump focuses on delaying final decisions until after his next term as president would end in 2029. For him, the campaign and election are not about becoming president but about what a judge has called his “stay-out-of-jail free” card.

Trump’s lawyers argue that the campaign insulates him, giving him a special legal status. But a federal appeals court just ruled that he could not use his new run for the presidency to claim immunity, noting “his campaigning to gain that office is not an official act of the office.” Still, the lawyers lodge appeals from adverse decisions, trying to run the clock.

Each case – Israel’s action against Hamas, the COP 28 climate summit, and Trump’s campaign – shows that what the principal actors say and what they mean can greatly differ. Their true intent could be dangerous.

Executive branch takes over lawmaking; Court responds

 

Gordon L. Weil

This country still struggles to achieve popular control of government.

In Revolutionary terms, the king would give way to the Congress.  Nice idea, but it’s not working.  What’s even worse, people are growing used to an extremely powerful executive.

The idea behind the Constitution was to prevent the chief executive from controlling everything and instead to give the ultimate power to the people’s representatives.  Legislative bodies would make the laws and presidents or governors would carry them out.

This idea largely failed because of Congress.  From the Civil War onward, it began passing some of its powers to the president and his executive branch agencies.  Congress might normally set national policy, but it would leave the details to the executive.  As issues seemed to become more complex, Congress increasingly left the hard legislative work to “experts.”

Complaints would arise about decisions made by expert regulators, but the Supreme Court deferred to their special knowledge.  It would not overrule their judgments on the facts unless they were completely unreasonable.  The focus of much day-to-day lawmaking shifted to executive agencies and away from elected officials, responsible to the people.

This week, the Supreme Court has heard a case that makes the point. The SEC, the federal securities regulator, charged that a major fund investor had fraudulently overvalued his assets. He faced a trial before an administrative law judge, not a court, who ruled against him.  He was found guilty, heavily fined and denied the right to work in investments.  The SEC approved.

Whatever his guilt or innocence, the investor was “tried” by an official who reported to the agency making the charges.  Congress had given the SEC the right to do that, stripping itself and the courts of their powers.  The Court is now considering if Congress could create this system.

In another major case that will soon be heard, the Court will decide who pays for observers that must be carried on some boats to discourage overfishing.  Congress failed to set a rule, but a federal agency came up with an interpretation that makes the boat owner pay. A lower court deferred to the regulatory body.  The Court will decide if the agency can set such broad policy.

The Supreme Court has begun to see if it can restore the concept that Congress makes the laws and cannot give the executive branch free rein.  Last year, the conservative Court majority departed from its traditional deference to regulators and ruled that Congress had not given the Environmental Protection Agency certain Clean Air Act authority.

Even more significantly, the Court’s conservative majority found that Congress had not given President Biden’s administration the authority to eliminate about $430 billion in student debt.  Political views aside, it was difficult to imagine how any president could spend that kind of money without legislative approval.

Right now, Maine faces the same kind of situation.  The tragic mass shooting in Lewiston merits a review allowing state government to learn if it could have been prevented and to ensure it would not happen again.

Governor Mills appointed a blue ribbon panel of qualified and respected members of the Maine community.  As a creation of the governor, this body has no powers of action.  It can review, report, and recommend, though technically its report goes only to the governor.

No sooner had the group assembled than it asked the Legislature for subpoena powers.  If the Legislature agreed, it would be turning the governor’s commission into an agency with governmental powers.  Yet lawmakers had no role in deciding on the commission, its scope, its budget and its members.  The request was a classic blank check from the Legislature to the governor.

The purposes of the commission are appropriate and necessary.  The membership is impressive. Yet their first act requested a change in status without formal legislative approval of their creation.  They want subpoena power without having encountered any opposition from anyone in providing information.  It looks like they have already decided to assess fault for the shooting.

People’s confidence in government is undermined by the kind of paternalism implied by allowing executive branch officials too much power.  Legislators may say they favor broad policies, but they leave the laws people must accept and follow to people outside of the legislative branch, who are not held accountable by voters.

The answer might be to restore both the power of the Congress and the Legislature and public confidence by passing simple laws that allow few exceptions and are specific in their terms.  Affected parties will complain about losing the treatment they need, almost always to create jobs. They need time to adjust. The latest tax law changes showed its possible.

The problem isn’t about the “administrative state.”  It’s about the failure of legislators to do their constitutional job.