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.