Month: February 2024

Mister Chief Justice, and may it please the Court,

On the case of Trump vs. Alexander, where the State of Colorado asserts that Donald J. Trump is ineligible to run for president as an insurrectionist under Section 3 of the 14^th Amendment, the defense has taken two positions. One, which I will address immediately, is that because ‘President’ is not among the offices listed under section 3, that therefore it does not apply to Mr. Trump. The other argument is that the 14^th Amendment should not apply to Mr. Trump and he should be allowed to run for president because section 3 allows for the prohibition to be removed by a joint act of Congress, a position which implies that the President is in fact subject to the Amendment.

To address the first point briefly, the defense has stated that there are such things as officers who are appointed for a certain purpose, but such officers are not elected officials and would thus not be subject to the Amendment in any case. It was already mentioned that when the 14^th Amendment was being discussed for passage in the Senate it had in fact been brought up that the wording does not include ‘President’ and Senator Lott Morill said, “Let me call the Senator’s attention to the words ‘or hold any office, civil or military, under the United States.’”

This was a matter already addressed in the Colorado Supreme Court’s ruling on Judge Wallace’s position that former President Trump has committed insurrection but is still eligible to run for office because the 14^th Amendment does not specifically mention the President. It was ruled that the language is nevertheless inclusive and that the matter in question is that Mr. Trump is ineligible because he participated in an insurrection. The advocates of this position state that it is “self-executing” in the sense that such a person is necessarily ineligible to run for office in the same way that the Constitution says a 14-year old or a foreign-born citizen cannot run for President. It is not however, self-executing in the sense that there is no official determination that Mr. Trump or some hypothetical subject has or has not participated in an insurrection.

I am going to go off on a tangent here. There is a theme on social media where someone will post two frames of a movie in which he has characters react according to intelligence and common sense rather than as the plot of the movie went, and the third frame of the movie is the end credits, because if people made the sensible conclusion instead of acting as dictated by plot, the movie would be over.

The example I’m thinking of is Star Wars Episode II: Attack of the Clones. This is the scene where Senator Amidala and the two Jedi, Anakin and Obi-wan, are captured by the Separatists under Count Dooku and led into an arena, and get rescued by the new clone army created by Chancellor Palpatine. And before that, Obi-wan tells Anakin that he was captured by Dooku, who told Obi-wan that the head of the Sith controls the Senate. And Anakin deduces that if a Sith controls the Senate and the clone army is Palpatine’s project, then Dooku and Palpatine are working together. And the third panel of the meme is “Written and Directed by George Lucas” because if the Jedi made the logical conclusion, Palpatine’s scheme would be over.

We are being asked to believe that what happened on January 6 was coincidence, not conspiracy. We are asked to believe in an absurdity. We are being asked to believe that when the president assigned responsibility to his Vice President for taking his case, then blamed that vice president for not doing so, and the mob in the Capitol reading his social media posts reacted by chanting “HANG MIKE PENCE”, that was coincidence, not conspiracy. We are being asked to believe that when testimony to a Congressional committee revealed that the president told his security to disregard the metal detectors in Washington because “they’re not there to hurt me”, that was not assisting an insurrection. When he refused to send troops to restore order for several hours and left that matter to Mike Pence himself, that was not assisting an insurrection. When supporters of the president guided tours through the Capitol halls for people who committed violence on January 6, that was not assisting an insurrection. When Jefferson Davis was placed on trial for treason after the Civil War, his own lawyers argued that he had already been punished by the provisions of Section 3 of the 14^th Amendment when he had committed no actual crime other than simply being the head of the insurrectionist government.

We are being asked to believe that we cannot declare Donald Trump ineligible for federal office as an insurrectionist because the mere fact of his actions is not enough, and he is innocent because he was not so stupid as to declare, “Ey, I’m committing an insurrection here!”

When that was never the standard when the Amendment was written and when it was previously applied.

I am going to go on another tangent and this does relate directly to the matter at hand. In board games, there is a concept known as “rules as written” because the rules as written are often different from the game as actually played. In Monopoly, it is a little-known rule that when you land on a space and you don’t want to purchase the property, you can’t just end the turn and pass to the next player. You have to set up an auction, in which all players are eligible, including the one who refused first purchase, and the winning bid wins, even if it’s less than the listed price of the property and even if it’s made by the person who refused the straight purchase.

This actually makes the game go faster because the properties get snapped up faster, but because you have to run through auctions, most players don’t bother with the rule cause they don’t want to deal with it. So for the sake of making the game easier and less complicated, we actually make it longer and more complicated.

We run the American government according to house rules all the time. For instance, we have been having the President take this country to war for decades. The last time Congress formally declared war was after Pearl Harbor in World War II. We give the President all kinds of powers that aren’t really enumerated in the Constitution. Because it’s easier than having Congress do its job. This is what happens when we do not place Article 1 ahead of Article 2.

And this is what ties to the matter at hand, because the discussions have related not only to impeachment of the president but the matter of how Section 3 of the 14^th Amendment is to be enforced or reversed. As we know, Article 1, section 2 of the Constitution states that the House of Representatives shall have sole power of impeachment, implying a simple majority vote in the absence of another threshold. Section 3 of Article 1, referring to the Senate, says impeachment cases must be tried in the Senate, and does specify that “no Person shall be convicted without the Concurrence of two thirds of the Members present.” This would seem to be an easy enough standard because in theory it allows the case to be established but only allows conviction when the guilt of the subject is clear and the offense is grave. It is assumed that because the Senate is the senior house of a separate branch of government that they are a neutral judge. In practice, we disregard the fact that since 1800, the President of the United States is the de facto leader of his political party in Congress. And thus while a preponderance of the House might be enough to send a case to the Senate, in practice a conviction in the Senate will never occur, because due to party allegiance, which is not accounted for in the Constitution, at least one-third of the Senate is going to be taking the President’s side regardless of the charge. Were that not the case, it raises the question how such an individual could get to be President in the first place.

Now on the matter of the 14^th Amendment, Trump’s defense goes between stating that the Colorado decision was improper because Congress can act once a candidate is elected but before taking office, or that the Court does not need to take responsibility in this case because it properly rests with Congress. From the text, no person may run for office who “shall have engaged in insurrection or rebellion”, but, “Congress may by a vote of two-thirds of each House, remove such disability.”
That is an even higher standard than the threshold for impeachment. It would require not only a two-thirds vote of the Senate but of the House of Representatives. And if we can see the practical chances of a successful impeachment, what are the chances that the joint Congress would restore an insurrectionist by a two-thirds margin?

When we say that an unethical president can be corrected and removed by impeachment, in practice we are saying “that’s not ever going to happen.” When we are saying that the issue with section 3 can be corrected by a two-thirds vote of Congress, we are saying, “that’s not ever going to happen.”

We are supposed to take the plain text of the Constitution and make that the ruling as though that were the only matter that applied.

When, in a past decision, the Court overruled precedent and decided that the the rights of citizens could be taken away by the states on a certain matter, in practice meaning that these rights apply to Americans in some states and not others, there was no consideration given as to the consequences or whether that would cause social chaos. All that mattered was the purity and the principle of the decision itself. And we are now asking whether applying the insurrection clause against one candidate, even with cause, should be avoided because that would disenfranchise voters? We are saying, in that case, that the State of Colorado cannot make that decision, if only on its own behalf?

In the past, there was no consideration as to whether the Court’s unilateral decision disenfranchised people in some states but not others, and now we’re expected to believe that that question matters?

On one recent opinion, it was remarked, “the current Court is textualist only when it suits it. When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get out-of-text-free cards.”

And yet we are supposed to believe that courts make decisions on the law as it is written with no consideration of context or consequences, that this is a place of law, not politics.

We all know that is not the case.

And to state this is not an accusation of bias or malfeasance, it is a statement of fact. It is impossible to make a decision on law that has no bearing on politics because law shapes politics and vice versa. The law in an absolute monarchy is going to be different than the law in a constitutional republic, and necessarily that dictates the process of politics and the governance of the country. When we create this arbitrary distinction between what the law says and how the government actually works in practice, and apply it only as we select, we are making sure that the law cannot be applied practically.

Any decision you make is going to have consequences, including the decision to do nothing.

What then is the role of a separate and independent judiciary?
The role of an independent judiciary is, and can only be, to make a fair ruling that is consistent with both a small-d democracy and a small-r republican system of government. To wit – you cannot have a democracy if one man can overrule an election. You cannot have a constitutional republic if one man can override the Electoral College. The decision here for us today is not just whether Donald Trump is immune to section 3 of the 14^th Amendment, or to any laws at all, but whether the insurrection clause of the 14^th Amendment even applies or is merely an appendix that can be removed from the constitutional body without consequences. Because if it does not apply in the case of Donald Trump, then find a case in American history where it would be more appropriate.

Thursday Feb. 8, the special counsel posted his final report on the investigation of President Joe Biden on the matter of withholding classified documents.

Let’s get past the point that the only reason this investigation even happened is because The Party of Trump whined long enough and loudly enough that their wonderful little boy was not being treated “fairly” by law enforcement, belying the point that Trump is not only not ruled ineligible to run for office as an insurrectionist over the 14^th Amendment, he is not in jail awaiting trial on that matter.

And yet, Hunter Biden has committed crimes, and Joe Biden did withhold documents without justification. It was justified for Attorney General Merritt Garland to appoint a special counsel, and he appointed Robert Hur (a Trump appointee as Attorney General for Maryland until 2021), apparently in the interest of fairness.

But while the body of the 388-page report indicated that Mr. Biden had not deliberately withheld documents after being asked to present them, and did distinguish Joe Biden from Trump in that regard, Hur implied that the main issue in putting the matter to a jury trial was that “(at) trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory”.

https://www.politico.com/news/2024/02/08/biden-classified-documents-charges-special-counsel-00140509

This is the sort of thing that people on MSDNC were referring to as a “James Comey moment” where a Republican but nominally non-partisan official makes a report clearing a Democrat of wrongdoing but in such a way as to cast doubt on their fitness. I mean, let’s assume that because Biden had withheld documents, Biden had also done the same thing that Trump did, as if we could equate a shoplifter with Al Capone. Let’s bypass whether it’s a backhanded compliment to call someone “a sympathetic, well-meaning, elderly man with a poor memory” as opposed to a repellent and malign old man with a poor memory.

But if we’re going to take all this stuff about Biden objectively and at face value, rather than as having political motivations, then that makes the case for Trump worse.

Because if the political system – which we laughingly refer to as “the people” – dictates that the president must be crooked, must be corrupt, must be old, must be senile, then that would demand that legal oversight on the president is more of an imperative and not less. Yet, the Republican Party, which casts itself as the main check on the Biden Crime Family, wants to give unlimited and unchecked power to Donald Trump, who makes Biden look as honest as Abe Lincoln and as sharp as a monofilament knife.

While Democrats in South Carolina got their primary last Saturday and Nevada gets its primary (sorta kinda) this week, former South Carolina Governor Nikki Haley doesn’t get to compete in her own state for the Republican primary until February 24. Prior to this she lost to Once and Future Viceroy for Russian North America Donald Trump in New Hampshire. Yeah, Haley did get more than 40 percent of the vote but she still lost by double digits and there is no other non-Trump competition. New Hampshire, with its Yankee libertarianism and relatively open primary system, gave Haley favorable ground that she’s not going to have anywhere else, even in her home state of South Carolina, where Republican politics are famously cutthroat.

All the more sad, because I said a while ago that one of these notTrump Republicans really needs to answer a serious question: If your platform is basically the same as Trump’s minus the personal history, then why should anybody vote for you when Trump is already running, has been president and has a built-in following you don’t have? Well, Nikki Haley has gotten as close as anybody to answering that question, by making very good points. Mainly, if she is going to have the same policies people liked about Trump, and the main criticism of Biden is that he’s very old, you can’t choose Trump as an alternative to Biden cause he’s not much younger and no less unsteady. Sure, Biden is old, he’s slow and he might be senile. So let’s replace him with Donald Trump. RIGHT. Donald Trump makes Joe Biden look like Drake.

But we should really quit thinking that Trumpniks remain in the cult because they’re voting for something constructive. Quite the opposite. There is a Politico article that was making the rounds in January where staff writer Michael Kruse did one of those mainstream-media-Trump-whisperer profiles where a journalist tries to get into the head of what the typical Trumpnik is thinking. And he discovered that they aren’t just cynical, they’re nihilistic:

And if Trump wins in New Hampshire on Tuesday (and polls say he probably will), and if he beats Joe Biden come November (and polls say he certainly might), it will be because of Johnson and the many thousands of others like him who looked for ways to quit Trump but ultimately couldn’t, didn’t and haven’t — and not remotely reluctantly but with an explicit sense of vengeance.

“He’s a wrecking ball,” Johnson told me here at the place he chose called the Copper Door.

“Everybody’s going to say, ‘Trump is divisive,’” he said, “and he’s going to split the country in half.” He looked at me. “We got it,” he said.

It’s what the Ted Johnsons want.

I’d already sussed this out. Not too long after starting this site, I explained why Trump’s fan club is completely immune to contradiction or appeals to logic:

“When these people reject any argument against Trump, what some of them are saying, consciously or not, is, “My life sucks, and it will never get any better. I am too old and too poor to retrain for a decent-paying job, assuming there are any left in my town. And the only power I still have is the chance to force everyone else to live in the existential hellhole that I am now trapped in for the rest of my life.”

And that was almost… eight years ago. Fuck, why can’t I get a job at Politico?

There used to be such a thing as conservatism in this country, but it was always inherently contradictory. As I said quite some time ago, the real issue with “conservatism” is that it is not a political philosophy. It is a governing approach towards a political philosophy. For example, in the Soviet Union, the “conservatives” were the people opposing Mikhail Gorbachev’s reforms, even though that meant preserving orthodox Marxism-Leninism, which is the polar opposite of what Americans call “conservatism”. But the contradiction is even deeper in America, because conservatism means preserving the original concept of American government, which is based in 18th-century classical liberalism and anti-royalism. “All men are created equal” is not a terribly conservative concept, even if it was stated by a slave owner. There is still a valid definition of “conservatism” in America, but it is relative, not objective. It refers to conserving that old capitalist, classical-liberal tradition against a leftist tradition that really took hold after Franklin Roosevelt and somewhat resembles the approach of the Social Democratic Party in Germany, although most of its American proponents were not explicit socialists. (Indeed, in the early 20^th Century, most of the ‘Progressives’ were in the Republican Party.)

But just as modern Democrats have been associated with a certain stereotype, Republicans have become associated with a certain stereotype of “conservatism” that they have been relying on since at least Vietnam. Their influence reached its high-water mark in the Reagan-Bush period, but since then, and especially in reaction to the Clinton Administration, “conservatism” has become less about promoting ideas and more about living in the stereotype, as intellectual models like Albert Jay Nock and William Buckley made way for political entertainers like Rush Limbaugh. Much like their existing approach to Christianity, “conservatives” focus less on the policies and ideas of actual conservatives and more on the attitudes and postures they associate conservatism with: “toughness”, nationalism, fiscal discipline. Believing in the idea, the feeling, is more important than preserving the reality, which is where “conservatives” always fell down even when they were serious. It’s why they keep talking a good game about budget cutting and border enforcement and always make the situation worse when they’re in office. They don’t really examine what they want or what would happen if they get it, so the “RINOs” – Republicans in Name Only cave to Democrats to make the system work. So Republican voters, with some cause, looked elsewhere for more purist people who would actually live up to the escalated rhetoric that politicians used to get them to vote, and politics, Republican politics in particular, became that much more about the slogans than anything backing them up. In the process, the Republican Party bypassed mere hypocrisy to become the opposite of what it claims to be. Like, how the party that made “McCarthyism” a thing suddenly was okay with Russian sympathizers. Apparently all Russians had to do was trade their army coats for business suits and the Republicans didn’t notice that they never really changed…

This is how the party of “fiscal conservatism” blew up the budget deficit while cutting tax breaks for the middle class. This is how the “borders, language, culture” party blew up a border bill that their Senators demanded.

And this is how “conservatism” came down to Donald Trump speaking to his cult from a podium on January 6, braying, “you have to show strength and you have to be strong.”
“Strength”, apparently, comes from a millionaire’s son whose Daddy got him out of the draft by citing bone spurs, who needs a golf cart to travel from place to place at international summits, and who always has an excuse for why every one of his screw-ups is someone else’s fault.

To go over what I’ve said before: This is literally a Party of Trump. It does not have the priorities of a political party, like running the country or even winning elections so that it can run the country. Its priority is serving Trump. The Republican Party does not have the priorities it used to, even if it pays lip service to them. The House has been holding up aid to not only Putin’s target Ukraine but traditional Republican allies like Israel and Taiwan. Why? Because Trump wants it. This party isn’t pro-tax or anti-tax. It’s “What does Trump say?” It’s not pro-Israel or pro-Palestine. It’s “What does Trump say?” It’s not pro-life or pro-abortion rights. It’s “What does Trump say?” If a tornado threatened to wreck a Republican-run town, the government wouldn’t appropriate services to get emergency services or shelters. They’d go, “What does Mr. Trump say?”

Wait, you’d wait for Trump’s permission before ordering emergency services? “Why not?”

Cause he might say no? “Why would he do that?”
Cause he’s a petty sadist who gets off on making other people suffer, and if they make themselves suffer just to please him and make him happy, he loves it all the more?

“You’re saying Our President would try to stop us from responding to a natural disaster and let thousands of people die or go homeless, just because he can?”
YES!
“THAT IS SO COOL! That’s a REAL leader! Not like these pussy Democrats who give charity to disaster victims! Get a JOB, ya hippies!”

What’s worse, because there is no room in politics for anything more than two parties, and one of those parties IS Trump, there is no room for anything outside of Trump even outside his party. There is no practical distinction between ‘real’ conservatives (the near-extinct species of NeverTrump Republicans), between what used to be libertarians (now that the Von Mises Caucus has basically turned the Libertarian Party into the Junior Varsity Club for the Trump Party), no distinction between hack liberals and woke socialists. It’s all just, are you sane, or are you Trump? Do you believe gravity is a thing that exists, or do you believe whatever Trump wants you to believe? Cause I can tell you, if someone convinced Trump that not believing in gravity would keep him out of prison or keep him from paying his bills, he would spread some bullshit story about how The Theory of Gravity is Fake News and everyone in the Party would have to believe it, on pain of death (and that might not be an exaggeration).

Which is a real problem, because the distinctions between conservatives, libertarians, liberals and “progressives” are real and will remain when or if Trump is gone. I say ‘if’ since at this rate Trump might well be immortal. Because God is real, and He hates us all. But assuming that this stale fart of a human being will fly out the window some time before the end of the century, we will have to address why this system is as screwed up as it is, specifically why the liberal-progressive spectrum that seems so ascendant now is in fact so incompetent and unpopular that in 2016 they made Trump look like a GOOD IDEA.

I mean, to a lot of people like myself, it seemed like a good idea to get rid of the “deep state”, which prior to Trump was just “the state” and in more mature terms is defined as the liberals’ “administrative state.” But then we saw what Trump was going to replace it with.

It should be obvious what a dilemma the country is in when the Lamestream Media is practically tearing their hair out wondering why Biden is STILL falling behind Trump in the polls no matter how wonderful they say the economy is. And that’s because we need an alternative to the Democrat mainstream. And that’s not what the Republican Party is giving us. They’re giving us “Trump is like Jesus, only better, cause Jesus has to be celibate.” And if THAT was good enough for America, then the 2022 midterms would have been a “red wave” and not a missed period.

Recently one of my liberal friends had posted something from The Newsroom about why the Will McAvoy character still considered himself a Republican, even though he didn’t think his own party was that Republican any more. It’s before Trump, but it only goes to show where things were heading:

We need a REAL right-wing party in this country. Not a wrestling heel or “reality” TV villain that plays to a bad-boy fan club, and not just as a “loyal opposition” to a social-democrat default. We need a governing party that can win elections and run the country. COMPETENTLY. We need a party that admits that we have a Constitution, it is written the way it is for a reason, and we dismiss it at our peril. We need a government that admits that as rich as our country is, it cannot spend more money than it makes forever and still expect to retain prosperity.

That is not what we have. The Republican Party has not been fiscally conservative since at least Reagan, but at least they used to be able to pretend. And as I say, we’re seeing that when you can’t even lie well anymore, there is a real qualitative decline in your positions from mere hypocrisy.

Because now it’s gotten to the point where Democrats can score by applying the Republicans’ old arguments. You cannot trust Republicans in Florida to keep their hands off of business, because Governor DeSantis killed a perfectly functioning administration the Disney company had in the state, since they weren’t following the right sort of political correctness. Republicans always were against Roe vs. Wade, but ostensibly because the abortion issue should have been left to the states. Well, now that it is up to the states, they want to make sure you can’t leave a slave uterus state to get an abortion in a free state.

In short, Americans don’t need government telling them what to do. This is something the Libertarian Party could take advantage of if it chose to, but like Ron DeSantis, they’ve decided they can get more scratch by being more Trump than Trump. And it’s worked out just as well for them.

And please don’t give us this Andrew Sullivan both-sides-ism that both parties are equally bad as a means of disqualifying the Democratic Party. Whataboutism is a standard Russian tactic for disqualifying your opposition on the grounds that both sides are equally bad and therefore you only need to choose on grounds of aesthetic preference (which the Republican culture warrior making that argument assumes his side will win). But that assumes, one, your preferred side will even do what it says it will, and that’s been a Republican problem. But to act like both sides are equally bad is to avoid a necessary comparison. To be sure, both Republicans and Democrats have equally bad, anti-American nutcases. But a comparison would require asking how many nutcases are in each party and whether they comprise a controlling plurality, if not a majority, of the national party.

To wit – Every “Defund the Police” initiative has crashed and burned in every locality where it’s been proposed. San Francisco Attorney General Chesa Boudin was recalled in 2022 after his “decarceration” program and other policies helped lead to a rising crime wave. Claudine Gay was kicked out of leadership at Harvard due to her (lack of) ethics and competence, not her race or her political positions. The nutsos are not in charge on the default Left and they are not setting the agenda.

By contrast, around one-third percent of Republicans polled support the January 6 riots, and at least a quarter think it was a false flag operation to make our President Trump look bad, and it’s all of a piece with Deranged Jack Smith’s persecution of Trump on fake charges, and if you’re a Republican and you don’t believe these things, you better ACT like you do if you don’t want to get hunted down and killed. So which party is run by the crazies?

Who smeared feces on the walls at the Capitol? Who tried to kill the Vice President cause he wouldn’t throw an election? Who ran the Confederate battle flag through the Capitol hallways, which Robert E. Lee was never able to do? The ostensible Party of Lincoln, that’s who.

And if you’re still a Republican after that… you’re not really a Republican.