A radical right legal analysis drives stake into DJT's heart -- but is it credible?

After a years of research and analysis, two law professors who are aligned with the authoritarian, radical right Federalist Society (FS) are publishing a paper in the University of Pennsylvania Law Review. The legal analysis concludes that DJT is ineligible to hold elected office unless congress grants him amnesty. The paper will be released next year (the abstract is here). The legal analysis conclude that DJT is ineligible to hold office in light of his role in the 1/6 coup attempt. The NYT comments on the paper: 

Two law professors active in the Federalist Society wrote that the original meaning of the 14th Amendment makes Donald Trump ineligible to hold government office

Two prominent conservative law professors have concluded that Donald J. Trump is ineligible to be president under a provision of the Constitution that bars people who have engaged in an insurrection from holding government office. The professors are active members of the Federalist Society, the conservative legal group, and proponents of originalism, the method of interpretation that seeks to determine the Constitution’s original meaning.

The professors — William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas — studied the question for more than a year and detailed their findings in a long article to be published next year in The University of Pennsylvania Law Review.

“When we started out, neither of us was sure what the answer was,” Professor Baude said. “People were talking about this provision of the Constitution. We thought: ‘We’re constitutional scholars, and this is an important constitutional question. We ought to figure out what’s really going on here.’ And the more we dug into it, the more we realized that we had something to add.”

He summarized the article’s conclusion: “Donald Trump cannot be president — cannot run for president, cannot become president, cannot hold office — unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6.” 
There is, the article said, “abundant evidence” that Mr. Trump engaged in an insurrection, including by setting out to overturn the result of the 2020 presidential election, trying to alter vote counts by fraud and intimidation, encouraging bogus slates of competing electors, pressuring the vice president to violate the Constitution, calling for the march on the Capitol and remaining silent for hours during the attack itself. 

“It is unquestionably fair to say that Trump ‘engaged in’ the Jan. 6 insurrection through both his actions and his inaction,” the article said.

What reasonable minds can think when trust is lost

Necessary context is this: Dogma and tactics of the powerful FS organization are aggressive, radical right, morally corrupt (including deeply mendacious and opaque), authoritarian, theocratic and plutocratic. The FS apparently is mostly responsible for selection of all six of the radical plutocratic, Christian nationalist Republican judges now sitting bench at the USSC. Its power, influence and bigoted authoritarianism should not be underestimated, no matter how hard the FS denies this. How one can rationally see this is as follows: 

1. The radical right FS has concluded that DJT not only cannot win the election in 2024, he is seriously damaging the FS agenda to kill secular democracy and replace it with some form of a corrupt plutocratic-theocratic dictatorship

2. Because of that fear, it called on its loyal law experts to gin up an argument that tries to stop DJT from seriously damaging the corrupt, authoritarian FS agenda, and "conservatism" (authoritarian radicalism) generally, by running for the presidency in 2024

3. But if the FS had decided that DJT was helpful to its tyranny & corruption agenda, it would have ginned up an argument that tries to empower DJT to advance the tyranny agenda

Even if the analysis the two law experts adduced is correct, one can reasonably believe their intent is cynical, corrupt and anti-democratic. That is because the group they support and align with, the FS, is cynical, corrupt and anti-democratic authoritarian. Maybe the legal analysis here is right, but it is right only in service to corruption, tyranny and bad government. 

Maybe this analysis is designed not to have any impact on DJT, but instead is intended to rehabilitate the crappy image the FS has earned for itself. That strikes me as the most plausible explanation.

Qs: Is that analysis too cynical and over the top, or is it plausible? Does the opinion even matter one way or another, e.g., in view of how transactional, cynical, immoral and unprincipled Republicans in congress are?

Bits: A scary GOP plan to protect DJT; Starving the beast; School attendance disaster

The elites driving radical right Republican Party farther into extremism are creative little devils. Truthout reports on one scheme by which the radical right Republicans in control of the House of Representatives can immunize DJT against prosecution. This might actually work. Truthout writes:

Matt Gaetz Has a Plan for Blocking Jack Smith’s Indictments of Trump

Gaetz believes a select committee should be established to grant Trump immunity from prosecution for his crimes 

Congressman Matt Gaetz (R-Florida), an ardent loyalist to Donald Trump, has suggested a plan to disrupt the dual investigations into the former president led by Department of Justice (DOJ) special counsel Jack Smith.

Unfortunately for Gaetz, however, the plan requires Trump to refrain from lying during his testimony before a House panel in Congress.

Gaetz has presented a number of strategies for how he and other Trump allies could protect the former president as he faces dozens of federal indictment charges. Last week, for example, he suggested that Republicans subpoena Smith to appear before the House Judiciary Committee, noting that if Smith refused to do so, he could be held in criminal contempt of Congress. Last month, he suggested that Congress vote to “defund” the special counsel’s office, limiting additional actions that Smith could take against the former president.

Gaetz explained his latest plan this week while discussing Trump’s most recent indictments, relating to his attempts to overturn the 2020 presidential election, with right-wing radio host Charlie Kirk. In order to end the investigation and other federal charges (from the Mar-a-Lago documents case, or any other future charges), the House of Representatives would have to grant Trump whistleblower protection status, Gaetz said.

Afterward, “you can actually bring President Trump in to give testimony to the Congress and, in doing so, immunize him,” he went on.  

Gaetz noted that House rules require a committee to have a “supermajority vote” in order to grant someone “full immunity” — but he had a plan for that as well.

“Speaker McCarthy could set up a select committee tomorrow,” Gaetz said, adding that if the committee was made up mostly of Republican lawmakers, they could achieve a supermajority vote.  

The plan, as explained by Gaetz, would require the House to establish a select committee. McCarthy cannot do so on his own — he needs a majority vote in the House, which would require nearly every Republican in the chamber to cooperate with the scheme, given the GOP’s extremely narrow majority. The plan would also likely be challenged in courts by the DOJ, which may argue against the legality of granting Trump immunity in a way that is so transparently corrupt.  

Gaetz admitted that the scheme would require Trump to actually testify before the theoretical select committee — and that new problems could arise from him doing so, such as Trump, a well-documented liar, perjuring himself.

Think about that for a minute or two. First, Democrats in the House cannot block this plan -- they need some Republicans to defect. Second, House Republicans could probably vote to change the rule from a supermajority vote to a simple majority, if that was deemed necessary. Third, once DJT is immunized, he could just keep lying or say as little as possible, if he had the discipline to do so -- prosecution for perjury is better than prosecution for treason, etc. (the crimes he is currently being prosecuted for). Fourth, there is no guarantee that if the DoJ did challenge the corrupt radical GOP immunity scheme in court that the corrupt radical Republican US Supreme Court would see it as corrupt.

This one really creeps me out.

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Early warning - starving the beast: Heads up folks, the USSC (US Supreme Court) has picked up another nuclear weapon to play with. This one could blow government and democracy to smithereens. The Hill writes:

Historic Supreme Court case could imperil the entire US tax code

The Supreme Court has agreed to hear one of the most important tax cases in history, which could either greenlight the constitutionality of an economically disastrous wealth tax, or destroy critical parts of the U.S. tax system.

Unless the justices take a middle road and define the 16th Amendment according to the history and traditions of the U.S. tax system, the case will result in bad law and worse outcomes.

The case (Moore v. United States) concerns the constitutionality of the 2017 Tax Cut and Jobs Act (TCJA). The act imposed a mandatory repatriation tax on pre-2018 profits that companies and some U.S. shareholders stored abroad. Previously, foreign business profits went untaxed until they returned to U.S. shareholders. But under mandatory repatriation tax, passed as part of Republicans’ comprehensive international tax reform, profits were taxed even if shareholders never received the income.

The court faces a difficult question: Is this mandatory tax on foreign profits that shareholders never actually received constitutional under the 16th Amendment? The Supreme Court has maintained since 1920 that income must be “clearly realized” for it to be taxable. Yet the U.S. tax code is riddled with taxes on unrealized income.

For example, the main tenet of partnership tax law is that partners are taxed on income allocated to them for tax purposes, whether or not they actually receive the income. The Supreme Court upheld this principle in 1938, less than three decades after the 16th Amendment was ratified. Since 1962, the United States has also taxed the passive and highly mobile income of overseas corporations controlled by U.S. shareholders, whether or not the income is distributed to them, to prevent aggressive tax avoidance strategies. The TCJA’s mandatory repatriation tax fits within this existing international tax regime.

Although The Hill describes it as an economically disastrous wealth tax, I'm not sure that is the case. For decades, wealthy people and special interests have been buying people in congress to get them to pass laws that legalize corruption and tax evasion. That legalized corruption campaign has been worth trillions of dollars, not merely hundreds of billions.  

By now it is clear that the the radical right Republican judges on the USSC (i) are dominated by a virulent, enraged hate of secular, transparent (honest) government, and (ii) they have abandoned precedent and intellectual principle to get what their ideologies demand in their court decisions. In view of that, they just might mostly obliterate the government's ability to collect taxes. That result would be completely in accord with the radical right's decades-long strategy called Starve the Beast.

One source commented about the decades-long Starve the Beast government killer movement: 

Republicans still trying to starve the beast

The GOP, which didn’t have much trouble supporting deep tax cuts during the presidency of Donald Trump, is now worried about the federal deficit. Republicans’ answer, once again, is to cut domestic spending.

After that, they’ll propose more tax cuts, which will make the federal deficit and debt even larger, which will require — you guessed it — further cuts in domestic spending.

Republicans never look for additional revenue. And they really don’t care how tax cuts will impact the overall economy. The Trump tax cuts were enacted during a period of solid economic growth, not during a recession, when additional government spending can be necessary to jump-start the economy.

No, the GOP is always looking for opportunities to cut spending because cutting spending means shrinking government, which is really the goal of many Republicans in the first place. It’s the “starve the beast” strategy that conservatives have long pursued.**  

The original meaning in Black Law’s dictionary from 1910 claims that income must be “received” to be defined as such, and that any income that has not been received cannot be taxed. As much as the justices want to preserve longstanding principles of the U.S. tax system, they cannot do it without setting precedent against the original meaning of “income” and authorizing a wealth tax.

** "Bipartisanship is another name for date rape. .... We are trying to change the tones in the state capitals-and turn them toward bitter nastiness and partisanship." -- Grover Norquist, prominent radical right Republican government and tax hater, quoted here in 2003 (Also this: In 2001 and again this year, the Bush administration has launched pre-emptive attacks on the national treasury designed to leave the U.S. government so deep in debt it poses no threat to the conservative status quo. Its motto is: Stop government before it can help again.)

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A strange but powerful absenteeism phenomenon has struck American public schools. Millions of students are simply not showing up for school. The Ap writes:

SPRINGFIELD, Mass. – When in-person school resumed after pandemic closures, Rousmery Negrón and her 11-year-old son both noticed a change: School seemed less welcoming.

Parents were no longer allowed in the building without appointments, she said, and punishments were more severe. Everyone seemed less tolerant, more angry. Negrón's son told her he overheard a teacher mocking his learning disabilities, calling him an ugly name

Her son didn’t want to go to school anymore. And she didn’t feel he was safe there.

He would end up missing more than five months of sixth grade.

Across the country, students have been absent at record rates since schools reopened during the pandemic. More than a quarter of students missed at least 10% of the 2021-22 school year, making them chronically absent, according to the most recent data available. Before the pandemic, only 15% of students missed that much school.

All told, an estimated 6.5 million additional students became chronically absent, according to the data, which was compiled by Stanford University education professor Thomas Dee in partnership with The Associated Press. .... Absences were more prevalent among Latino, Black and low-income students, according to Dee’s analysis. 

CA = 30.0% chronically absent

OH = 30.2%, FL = 32.3%, Al = 17.9%, MA = 27.7%, AK = 48.6%

Kids are staying home for myriad reasons — finances, housing instability, illness, transportation issues, school staffing shortages, anxiety, depression, bullying and generally feeling unwelcome at school.

It looks like the bigotry, rot and vulgarity of intentionally divisive, rancid US politics is spilling over into the rest of American society. My analysis: 

1. Rancid US politics, including attacks on public education and teachers, has spilled over and is one part of the cause, ~40% responsible

2. To the extent politics is relevant, the radical right and its propagandists (Faux News, the GOP, etc.), supporters and enablers  = ~80% responsible

Everyone and everything else = ~20% responsible 

Covid Update: August, 2023

Apparently, based on hospitalizations and wastewater concentrations, we are once again experiencing a Covid surge which, according to the NY Times and other MSM is not much to worry about, but rather a slight fluctuation within what they call the "new normal."  and the WSJ terms more of a "nuisance"then serious problem except for those who are immunocompromised or suffer from problematic preexisting conditions (diabetes, cardiovascular and other types of illnesses). The most prevalent variant is a new one, EG.5 dubbed "Eris," which is in the Omicron family. The virus continues to evolve, and as it has from the beginning, it poses very real dangers for the public. Unfortunately, these dangers do not disappear as easily as policies or declarations of emergency. Actually, we've known for some time that the causal arrow runs both ways as far as diabetes and cardio vascular illness go.  Those with no prior history who get infected are at an increased risk of getting diabetes or other cardiovascular illnesses. Many (even if infections are asymptomatic) will develop chronic illnesses, many of which are disabling. We've learned that Covid is now a significant driver of various neurological and brain-related problems. Autopsies reveal that all Covid variants are neuroinvasive and affect the brain in a variety of different ways, many of which are far from being merely a "nuisance." 

The CDC says 1 out of every 5 Americans who have had Covid have Long Covid. That's a huge #. Long Covid is found less in the elderly than young and middle age adults.The CDC estimates (see link) that 1 in 13 adults in the US (i.e. ~8% of pop.) have Long Covid (= symptoms lasting 3 or more months).  Again, Covid is not merely respiratory, but neuroinvasive both in acute and post-acute phases and  increases risk of diabetes and cardiovascular diseases, as explained in the video from Cedars-Sinai Medical Center below.

 

I write these things, and provide the links because media and gov't have abandoned citizens and hidden the ugly truth about Covid with words like "new normal"and "nuisance." Further, when comparing the this surge with past ones quantitatively, they have no strong empirical basis since they stopped tracking infections when the state of emergency ended (and tracking was always sloppy anyway).  Whatever inferences they do draw are now based on extrapolations from concentrations of the virus in wastewater and hospitalizations.

 

Based on what we know about this virus, we can expect a medium to long term uptick in neurological, cardiovascular and other conditions that diminish  life-expectancy. Such a trend can, unfortunately,  be expected if we don't commit ourselves to significantly increasing the  funding research into this extremely pervasive and complex disease-- especially the aspects that are chronic or lumped into the category "Long Covid." 

The government and media may be done with Covid, but that doesn't mean Covid is done with us. When I'm indoors in small or somewhat crowded places, I am often one of the few  (even in hospital settings) wearing a respirator or mask. I'm sorry about those who might wear one if they knew the facts so conspicuously left out of the few articles on Covid that still appear in MSM. The gov't and media have an obligation to-- at a minimum-- get all this info out there in PSAs, front-and-center mass media coverage, infographics,  etc. Sadly, they have failed to meet that responsibility. Be careful, folks.

Bits: America's two-tiered justice system; CN in commerce; CN in secular society

The radical right keeps howling in self-righteous moral outrage about America's two-tiered system of justice and how it has been weaponized against the radical right. That is only half-right. The system is two-tiered, but it is rigged to heavily favor powerful elites, rich people and wealthy special interests. That rigging involves legalizing corruption of politics by money. Some of it involves treating elite criminal suspects lightly and with favors that regular dumbass taxpayers rarely get. The HuffPo writes:

There Does Seem To Be A ‘Two-Tiered’ Justice System, 

And Donald Trump Is Its Poster Child

Trump now faces 78 felony counts in three indictments but has yet to wear handcuffs, lose his passport, post bail or even have his mug shot taken

Republicans complaining about a “two-tiered” justice system might find the evidence they’re looking for in prosecutors’ treatment of their own de facto leader: Donald Trump.

From the lack of a cash bail requirement to the ability to keep his passport, to the absence of any sanctions for his attacks against judges and prosecutors, to his successful avoidance of the humiliation of a mug shot, the coup-attempting former president has been afforded remarkable deference in all three of his felony prosecutions to date.

“Most defendants who enter the federal criminal justice system do so with a knock and a warrant at 6 a.m.; handcuffs and possibly shackles; removal of cell phones, belts, shoelaces and wallets; mug shots and fingerprints; and some form of bail package,” said Danya Perry, a former federal prosecutor and now a defense lawyer. “They also face serious consequences if they issue threats or tamper with witnesses once released.”

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There is a now-constant effort to force radical Christian fundamentalism on everyone in American society and commerce. The government has to go to court to defend attacked workers from Christian brainwashing and aggression. I include the term "attack" to include a worker being fired from their job based on religious discrimination, Christian Sharia law in this case. Law & Crime writes:

Home repair company employees fired for refusing to attend 

‘cult-like’ prayer meetings receive large settlement

A home repair company in North Carolina will pay a $50,000 settlement to two employees who claimed they were fired after refusing to attend daily “cult-like” Christian prayer meetings.

The U.S. Equal Employment Opportunity Commission (EEOC) announced. The settlement stemmed from a religious harassment, discrimination and retaliation lawsuit filed by the agency in June 2022.

“Federal law protects employees from having to choose between their sincerely held religious beliefs and their jobs,” said Melinda C. Dugas, regional attorney for the EEOC’s Charlotte District, in a statement. “Employers who sponsor prayer meetings in the workplace have a legal obligation to accommodate employees whose personal religious beliefs conflict with the company’s practice.”

It is reasonable to think that in the next year or two the radical Christian nationalist USSC will try to find a way to call that law unconstitutional. The six radical Christian nationalist Republican theocrats on the USSC can point to the employer's rights to (i) religious freedom, and (ii) discriminate against people they deem to be unworthy of a job in God's eyes. This case looks to be a good choice for doing that, assuming the home repair company decides to appeal.

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The infinite loving grace of God as expressed by the American Christian nationalism (CN) wealth and power movement is being expressed more aggressively as time passes. It's been normalized by radical right elites and now all out in the open. Targeted communities that God hates are paying attention. LGBTQ Nation writes about a recent incident of CN bigotry and hate:

Rep. Matt Gaetz calls LGBTQ+ people “degenerate” while 

announcing prayer-in-schools bill

Rep. Matt Gaetz (R-FL) says that he will soon introduce what he is calling the “National Prayer in School Act” tomorrow, saying that the bill will protect the right to pray in schools and stop “degenerate LGBT” propaganda.

Students are already allowed to pray in school as long as they don’t disrupt school activities, a right that’s protected by the First Amendment. Prayer organized by public schools, though, has been banned since the early 1960s in several Supreme Court decisions.

Gaetz speaks for both himself and the CN wealth and power movement. Never loose sight of where power flows when bigoted CNs like Gaetz go on the attack.

Q: Who is the degenerate here, Gaetz or the target of his vicious hate?