Some poll data; Court decision fallout; Defending democracy; Thinking about the constitution

Some early poll data indicates that Biden's bad debate performance is costing him some support. USA Today writes:

Republican Donald Trump has edged ahead of Democrat Joe Biden, 41% to 38%, in the aftermath of the candidates' rancorous debate last week, according to an exclusive USA TODAY/Suffolk University Poll.

That narrow advantage has opened since the previous survey in May showed the two contenders tied, 37% to 37%.

The findings still signal a close contest, not a decisive lead. The difference in support and the shifts since the spring are within the polls' margins of error of plus or minus 3.1 percentage points. The new survey of 1,000 registered voters was taken Friday through Sunday by landline and cell phone.

There was little change in the standing of third-party candidates, with independent Robert F. Kennedy Jr., at 8% and three others at about 1% each.

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That Trump vs. US USSC decision that converted a president loosely bound by the rule of law, to a corrupt dictator bound by nothing, is starting to have serious ramifications. Here is a two page letter DJT's lawyers wrote to judge Merchan asking to have the business fraud convictions against DJT set aside:

The letter reads in part:

We respectfully submit this premotion letter seeking leave to file a motion to set aside the jury’s verdicts, pursuant to CPL § 330.30(1), based on today’s decision from the Supreme Court in Trump v. United States, 2024 WL 3237603. As explained below, the Trump decision confirmed the defense position that DANY [New York District Attorney] should not have been permitted to offer evidence at trial of President Trump’s official acts. We respectfully request until July 10, 2024 to submit a memorandum of law in support of the motion. Because of the complexity of the issues presented, President Trump does not object to an adjournment of the July 11, 2024 sentencing date in order to allow adequate time for full briefing, oral argument, and a decision. See People v. Turner, 222 A.D.2d 206, 207 (1st Dep’t 1995).

By way of background, on March 7, 2024, President Trump filed a motion in limine to preclude evidence of his official acts based on the presidential immunity doctrine. In that filing, we objected to anticipated testimony from certain potential witnesses, evidence of President Trump’s social media posts and public statements, and a 2018 filing with the Office of Government Ethics (OGE). ....

Under Trump, this official-acts evidence should never have been put before the jury. Consistent with arguments that we made before and during the trial, the Supreme Court held in Trump that President Trump “may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.” 2024 WL 3237603, at *25. The presumption applies “unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” Id. at *12 (quoting Nixon v. Fitzgerald, 457 U. S. 731, 750 (1982)). DANY cannot make that showing here.

The rationale the USSC gave to allow a US president to break laws as he desires boils down to this: The president will be subject to lawsuits by the political opposition, so we need to protect the president's ability to perform "official acts" by (1) granting absolute immunity of all official acts, (2) not defining what an official act is, (3) not allowing evidence of any wrongdoing to be submitted to the court for consideration of motive, and (4) erecting a presumption of immunity of all presidential acts. The only thing left, is for persecutors to prove something was (i) not an official act, and (ii) it broke a law. The presumption of immunity makes the burden of proof of law breaking so high that is it practically speaking, impossible to meet.

The USSC simply swept aside the facts that no president has ever been seriously harassed or prosecuted for any non-corrupt official acts and sitting presidents are not subject to prosecution for law breaking anyway. 

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In defense of democracy, the rule of law, civil liberties and actual reality: Today, I wrote to six opinion writers at the NYT complaining about all the whining and hair on fire about Joe Biden and his bad debate performance, but no comparable whining and hair on fire about DJT, his far worse debate performance, his kleptocratic authoritarian supreme court or his morally rotted Republican Party and its kleptocratic authoritarianism. I wrote to one NYT journalist complaining about wrongly calling DJT supporters conservative when they in fact are undeniably radical right authoritarians who support kleptocracy over democracy, the rule of law and civil liberties.

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In some recent comments, ulTrax raised a major point (thanks) about what radical right authoritarianism has done with the law. This point needs to be understood. Really.

Instead of a document that protects individual liberty by reining in government power, the radical authoritarian judges and lawyers say that the constitution protects government power by reining in individual liberty. It is not the job of the courts to determine what our rights are. The courts are to define what government powers are. If those powers don't exist in the constitution, all other the rights should be held by the people.

That is ass backward. This is the gigantic lie that underpins most or all of the anti-democracy, anti-civil liberties and anti-rule of law USSC decisions in the last few years. It will be the lie that underpins future anti-democracy, rule of law and civil liberties cases in the coming years.

Perplexity explains this critically important point of constitutional law like this:

Q: Does the constitution protect individual liberty by limiting government power, or does the constitution protect government power limiting individual liberty?

A: The Constitution primarily protects individual liberty by limiting government power, not the other way around. This is a fundamental principle of American constitutional law and governance. Here's a breakdown of how the Constitution achieves this: 

1. Limited Government Powers: The Constitution establishes a system of checks and balances and separation of powers, which diffuses and limits the power of the federal and state governments. This structure is designed to prevent any single branch or level of government from becoming too powerful and infringing on individual rights.

2. Bill of Rights: The first ten amendments to the Constitution, known as the Bill of Rights, explicitly protect specific individual liberties from government interference. These include freedoms of speech, religion, press, assembly, the right to bear arms, protection against unreasonable searches and seizures, and due process rights, among others.

3. Additional Constitutional Protections: Beyond the Bill of Rights, other parts of the Constitution also protect individual rights, such as the right to trial by jury in criminal cases (Article III) and protections in the Civil War Era Amendments like the 14th Amendment's Due Process and Equal Protection Clauses.

4. Fundamental Rights: The Supreme Court has interpreted the Constitution to protect certain fundamental rights, even when not explicitly enumerated in the text. This has expanded the scope of individual liberty protections over time.

5. Restrictions on Government Action: Many constitutional provisions are framed as prohibitions on government action rather than grants of power to the government. For example, "Congress shall make no law..." in the First Amendment. 

 

6. Ninth and Tenth Amendments: These amendments clarify that the enumeration of certain rights in the Constitution does not deny or disparage other rights retained by the people, and that powers not delegated to the federal government are reserved to the states or the people.

The founders believed that protecting individual liberty from government overreach was crucial to the American experiment in self-governance. As Thomas Jefferson stated, "A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse." 

In summary, the Constitution's primary function regarding individual liberty is to limit government power in order to protect and preserve the rights and freedoms of individuals, not to empower the government to limit individual liberty.

For an example, consider abortion. The Constitution is silent about abortion. Because of that, government has no power to deny abortion access to anyone. Roe v. Wade was a workable compromise that allowed states to ban abortions in the 3rd trimester, which many states did. But now, governments in most or all red states have used state power to write and enforce forced birth laws. Before the rise of the American authoritarian radical right, those forced birth laws, arguably including Roe v. Wade, were unconstitutional. But now that the authoritarian radical right tells us the constitution protects government power limiting individual liberty, those laws are constitutional.

See the terrible, morally rotten sleight of hand here that most radical authoritarian legal reasoning stands on? We have been betrayed by traitors in our midst.

Christian nationalism gets hyper-aggressive with public schools; Fighting kleptocratic tyranny

This 6:48 video discusses a new requirement to teach Christianity in all public schools in Oklahoma. The requirement demands immediate and strict compliance, or teachers will be fired for failure to properly comply. Teachers must teach from the Bible itself. The administrator imposing this requirement arrogantly and blithely dismisses criticisms as nonsense coming from the left.

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This morning in my defense of democracy efforts, I sent sharp criticisms to four NYT reporters for under reporting about the kleptocratic authoritarian threat of DJT, his hideous, lies-packed "debate" performance, recent Supreme Court decisions and the Republican Party in general. I pointed out that calling DJT, GOP elites and Republican Supreme Court judges "conservative" is unjustifiable and wrong. Those people are not conservatives. They are aggressive kleptocrats and authoritarians, i.e., autocrats, plutocrats and Christian theocrats. Calling them conservative softens the threat and normalizes both kleptocracy and authoritarianism at the expense of democracy, the rule of law, civil liberties and transparent, competent governance. It also insults actual pro-democracy, pro-civil liberties, pro-rule of law, pro-rationality conservatives.

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To drive home the argument I keep making that Christian nationalism (CN) is kleptocratic, this video affords a glimpse of the scope of the lust for tax dollars that drives essentially all Christian theocratic elites. Getting access to tax dollars has always been a key goal of the authoritarian CN wealth and power theocratic movement.

So, now what?

We are in serious distress and need help

Our democracy, the rule of law and our civil liberties have entered what looks to be a deadly game ending in some form of kleptocratic authoritarianism. If that is mostly true, and I believe it is, one can reasonably ask, what can I do? Is there anything meaningful that any regular person can do? 

I plan to be more aggressive about criticizing people in the media who put out bad content about Biden while saying little or nothing about the far worse kleptocratic DJT and America's radical right authoritarian monsters are. The MSM keeps referring to the authoritarian wealth and power movement as "conservative", and I will keep calling that out as a lie. True conservatives are not authoritarian or kleptocratic. It is an insult to conservatives to smear them by calling authoritarians "conservatives."

I will try to engage at radical right authoritarian sites that allow me to engage. There may be none of those left, but I can at least check it out.

Things that some say are ways to protect democracy, civil liberties and the rule of law from openly hostile American authoritarianism:

• Stay informed and engaged: Keep up with reliable news sources and fact-based information about threats to democracy. Understanding the issues is crucial for effective civic participation.

• Vote in all elections: Participate in local, state, and national elections. Free and fair elections are fundamental to democracy, so exercising your right to vote is essential.

• Support organizations defending democracy: Contribute time or resources to nonpartisan groups working to protect voting rights, civil liberties, and the rule of law.

• Speak out against authoritarianism: Use your voice to condemn antidemocratic actions and rhetoric. Share factual information to counter disinformation.

• Contact elected officials: Regularly communicate with representatives at all levels of government to express support for democratic principles and opposition to authoritarian policies.

• Volunteer as a poll worker or election observer: Help ensure the integrity of elections by participating directly in the electoral process.

• Engage in peaceful protest and civil discourse: Exercise your First Amendment rights to assemble and speak out in defense of democratic values.

• Build cross-ideological coalitions: Work with people across the political spectrum who share a commitment to democratic principles, setting aside partisan differences to defend core values.

• Support independent journalism: Subscribe to and share quality journalism that holds power to account and provides factual information.

• Educate others: Have conversations with friends, family, and community members about the importance of democratic norms and institutions.

• Participate in local government: Attend town halls, city council meetings, and other local government forums to stay engaged in community decision-making.

• Support civic education: Advocate for robust civics education in schools to ensure future generations understand and value democratic processes.

• Donate time or money to pro-democracy efforts 

I do some of those things now, but the urgency feels much greater today than last week. 

About Dem messaging

Well, the USSC just finished blowing our formerly nice little democracy and rule of law to smithereens. In view of that, it now seems reasonable to turn our troubled minds to the Democratic Party. What it is going to do to save American democracy, the rule of law and our civil liberties? 

As we all know by now, Dem messaging is at a serious disadvantage. Dems use mostly honest speech against the mostly DFS (dark free speech) the Repubs routinely use. As one can imagine, since DFS can be and usually is detached from facts, truths and sound reason, that gives the Repubs a great advantage in messaging. How great an advantage? My estimate is that DFS generally has ~1.5 to 2-fold the persuasive power that comparable honest speech has. 

We saw an excellent example of that advantage in the Biden vs. DJT debate a few days ago. DJT lied, slandered, blithered and crackpotted on us the whole time. Despite a worse than dismal showing by DJT, most regular folk saw him as the winner and Joe as the loser. So much for respect for fact, truth and reason among most of the regular folk.

Speaking of the power of DFS messaging, Salon posted an interesting article about it:

"Trump is all dominance, all the time”: 

New research reveals "his most formidable political asset"

UC Berkeley professor M. Steven Fish explains the way Trump's "character defects manifest what looks like bravery"

Political scientist M. Steven Fish believes that the Democratic Party’s inability, despite their many policy successes, to conclusively defeat the Republicans and the larger “conservative” movement and American neofascists, is rooted in much bigger and systematic failings. A professor of political science at the University of California, Berkeley, Fish has appeared on BBC, CNN, and other major networks, and has published in The New York Times, The Washington Post, and Foreign Policy, among others. His new book is “Comeback: Routing Trumpism, Reclaiming the Nation, and Restoring Democracy's Edge.”

In this conversation, Fish warns that Donald Trump and the other Republican leaders use a high-dominance approach to politics and communication that allows them to set the agenda, which in turn puts the Democrats, who tend to be more passive and consensus-oriented, in a consistently weak position of reaction and defense. It is this failure of messaging and leadership style that has largely made the (white) working class so attracted to the Republicans and Trumpism.

Fish counsels the Democrats to learn from and model their behavior on such high-dominance liberal leaders as President Franklin Delano Roosevelt, President Kennedy, and Dr. Martin Luther King Jr. who acted and spoke with force, clarity, moral vision, courage, and who actively sought to shape the terms of the debate and policy through the force of their personalities and clarity of vision.  

We haven’t seen a more serious threat to democracy and liberal values since WWII. But I also firmly believe that we can beat this threat back, too, just as we did then. We just have to be clear about the nature of the danger and act now to defeat it.  

The problem is that the Democrats don’t unmask Trump’s essential cowardice and overmatch his dominance game. Liberals often seem to think that people just need to evolve past their need for dominant leaders and get on with creating a world in which everyone gets along, and nobody seeks to dominate anybody else. But as the eminent psychologist Dan McAdams notes, our desire for commanding leaders is baked into our DNA. It isn’t all we seek in our leaders, but seek it we do, and that isn’t going to change anytime soon. McAdams argues that no American president has tapped into what he calls “the primal psychology of dominance” as effectively as Trump has. In fact, McAdams suggests that Trump has little but dominance going for him.  

Of course, many voters are repelled by Trump’s style. But overall he has gained more than he has lost because of his high-dominance strategies.

Maybe the Dems should pay some attention to the Fish and think about tweaking their messaging protocols in light of his commentary.

About the immunity ruling

My projection was that most likely the USSC would punt on the immunity case and remand it to lower courts to delay making a final decision. That this case was not decided months ago indicated to me that the USSC very much wants to protect DJT. 

Now that the decision is here, some initial reactions. We are truly and undeniably witnessing the empowered rise of full-blown, kleptocratic authoritarianism in real time. The kleptocratic plutocrats are cheering the Corner Post case.

• The first case the USSC released today, Corner Post, Inc. v. The Board of Governors of the Federal Reserve just blew another massive hole in the ability of federal agencies to regulate. The USSC is tearing down the entire foundation of executive administrative regulatory power. Judge Jackson wrote a long dissent, which includes these comments:

More than half a century ago, this Court highlighted the long-recognized “hazards inherent in attempting to define for all purposes when a ‘cause of action’ first ‘accrues.’” Crown Coat Front Co. v. United States, 386 U. S. 503, 517 (1967). Today, the majority throws that caution to the wind and engages in the same kind of misguided reasoning about statutory limitations periods that we have previously admonished. 

The flawed reasoning and far-reaching results of the Court’s ruling in this case are staggering. First, the reasoning. The text and context of the relevant statutory provisions plainly reveal that, for facial challenges to agency regulations, the 6-year limitations period in 28 U. S. C. §2401(a) starts running when the rule is published. The Court says otherwise today, holding that the broad statutory term “accrues” requires us to conclude that the limitations period for Administrative Procedure Act (APA) claims runs from the time of a plaintiff ’s injury. 

The Court’s baseless conclusion means that there is effectively no longer any limitations period for lawsuits that challenge agency regulations on their face. Allowing every new commercial entity to bring fresh facial challenges to long-existing regulations is profoundly destabilizing for both Government and businesses. It also allows well-heeled litigants to game the system by creating new entities or finding new plaintiffs whenever they blow past the statutory deadline. 

The majority refuses to accept the straightforward, commonsense, and singularly plausible reading of the limitations statute that Congress wrote. In doing so, the Court wreaks havoc on Government agencies, businesses, and society at large. I respectfully dissent.

At the end of a momentous Term, this much is clear: The tsunami of lawsuits against agencies that the Court’s holdings in this case and Loper Bright (the decision yesterday that blew the Chevron defense and neutered federal agency rule-making power] have authorized has the potential to devastate the functioning of the Federal Government. Even more to the present point, that result simply cannot be what Congress intended when it enacted legislation that stood up and funded federal agencies and vested them with authority to set the ground rules for the individuals and entities that participate in the our economy and our society. It is utterly inconceivable that §2401(a)’s statute of limitations was meant to permit fresh attacks on settled regulations from all new comers forever. Yet, that is what the majority holds today.

The seething hostility of the radical, authoritarian Republican USSC to government and regulations cannot be any clearer. This case is another major, full-blown attack on the rule of law and democracy itself. Regulations are crumbling before our eyes. This is what the business community has bough and paid for in government. Maybe now the staggering importance of an imperial USSC will start to become clearer for people reluctant to see and/or admit what is happening with this corrupt, authoritarian court. 

• Comments to be added after the USSC immunity opinion is made public. I am following the flow of commentary at Scotus Blog, about the best USSC blog out there. 

 

The immunity case, Trump vs. US, was just released. The WaPo writes:

Justices: Presidents entitled to immunity for clearly official acts

The high court’s 6-3 ruling sends the case back to the lower court to determine when and whether Trump will go to trial

The holding of the USSC opinion that protects DJT's criminality includes these comments:

Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts. Pp. 5–43.

Sotomayor wrote in a long dissent (about 60 pages, joined by the other two Democrats Kagan and Jackson joining the dissent):

Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for “bold and unhesitating action” by the President, ante, at 3, 13, the Court gives former President Trump all the immunity he asked for and more. Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent.

The majority of my colleagues seems to have put their trust in our Court’s ability to prevent Presidents from becoming Kings through case-by-case application of the indeterminate standards of their new Presidential accountability paradigm. I fear that they are wrong. 

But, for all our sakes, I hope that they are right. In the meantime, because the risks (and power) the Court has now assumed are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms, I dissent.

Sotomayor included this statement of fear:

With fear for our democracy, I dissent.

Sotomayor writes that the majority’s grant of immunity “reshapes the institution of the presidency” and “makes a mockery of the principle” that “no man is above the law.” This is as authoritarian as the law can get without pronouncing that DJT has absolute power for life. America's kleptocratic dictator supporters and enablers are cheering the fall of the rule of law in real time right now. Our democracy is crumbling before our eyes.

This effectively delays until after the election federal prosecutions of DJT and maybe also the Georgia state criminal prosecution of DJT. Now, all DJT has to do is get re-elected and pardon himself. DJT definitely would try to make the federal criminal prosecutions go away.

So, my prediction was basically correct. The hyper-partisan, authoritarian Republican USSC punted to lower courts, giving DJT a massive win in terms of delay and evasion of the rule of law.

My second-guessing is showing… again.

Yes, you know I’m a second-guesser.  Have been all my life.  I suppose you could say I’m “careful” like that, always weighing the options.

Like most of us Dems, I was super freaked out by the debate performance by Joe Biden last Thursday.  I stated that “even I was warming up” to the idea that he has to drop out and give someone else a better chance.

Here's the reason that changed my mind.  It is well worth the full 17:49 min listen:

Link here.

I realize now, thanks to Mika’s opinion editorial, that dropping out is the worst thing that could happen for the Dems.  Talk about a then “super fractured” party.  Bad, bad, and I mean bad idea.  DJT would benefit from our fracturing and we, in our haste and panic, would catapult the serial liar to a sure victory.

So, barring unforeseen circumstances, I will be sticking with Joe until the end.

What about you?  Will you be sticking with Joe until the end?  I firmly believe that if you/we don’t, like our mistake in 2000 with Ralph Nader, we will be partly responsible for a second+++? Trump term(s).

Make your case.

(by PrimalSoup)