Category: Politics

Get out your popcorn out for this one, which will end up with many matters to be decided by the judiciary.

Jim Jordan will be investigating the Jan 6th investigation – of which he is almost certainly a target. Should an FBI officer be forced to reveal details of an investigation to the guy he’s investigating? The common sense answer is obvious, but the legal answer is not.

Furthermore, there could be a battle of subpoenas. Jordan could be issuing subpoenas to the investigators while they are issuing subpoenas to him to testify about his actions on and leading up to January 6th. The DoJ will obviously challenge any congressional subpoena in court if the subpoena interferes with a criminal investigation, and the Supreme Court will probably have to sort it out eventually. The congressman, on the other hand, can’t ignore a grand jury subpoena. Judges take those very seriously. In the most extreme example, it could actually end up with Jordan questioning a guy one day, then getting arrested by the same guy the next day!

538 now shows that the GOP is slightly more likely to capture the Senate. The forecast model moved the GOP from “51 wins per 100 simulations” to 55/100.

538 now shows Fetterman ahead by half a percent in Pennsylvania. No forecast or poll comes close to that kind of precision so the bottom line is – we know nothing.

Georgia is in precisely the same boat. 538 shows Walker up by a tenth of a point. There is a key distinction between Georgia and the other states in that a win on Tuesday does not mean an automatic Senate seat unless the winner exceeds 50%. Given a third party candidate and a virtual tie between the major party candidates, a December run-off seems like a strong possibility.

538 still has Nevada in the toss-up category, but it seems increasingly likely that Laxalt will win. 538 shows him winning 59/100 simulations, versus 41 for the Democrat. The problem here is that Sen. Masto (birth name Catherine Cortez), despite being Hispanic through her father’s side, has lost Hispanic support. In September she had a 19-point lead among Hispanic voters, and she now faces a 13-point deficit. A Laxalt win will most likely mean that the Democrats have to win both Pennsylvania and Georgia.

The Presidential Records Act is clear in one way: Trump absolutely does not have the right to retain any of his Presidential records in his personal possession. In that regard at least, there is no debate. The rest of the issues are complicated.

In simplest terms, while Trump clearly does not have the right to possess the documents, he may be able to keep most people from accessing them.

The archivist can’t just allow public access to records without warning. If he is to make a previously undisclosed document public, he must make certain filings to that effect, including a notice to the affected former President, who has a certain time period to file his claims of privilege.

However …

The current President is the one who determines whether to uphold a former President’s claim. Executive privilege is held by the current executive branch, not by a private citizen, so Trump’s claim of privilege is valid only if Biden upholds it, which he might well do if it involves secret matters of national security, but which he obviously would not do if it involves Trump committing or conspiring to commit a crime. In between those two clear-cut extremes, there may be many shades of gray.

However …

Biden’s decision can be appealed, and the archivist can be forbidden by a court order from making the documents public.

(c)

(1) If a claim of constitutionally based privilege against disclosure of a Presidential record (or reasonably segregable part of a record) is asserted under subsection (b) by a former President, the Archivist shall consult with the incumbent President, as soon as practicable during the period specified in paragraph (2)(A), to determine whether the incumbent President will uphold the claim asserted by the former President.

(2) Not later than the end of the 30-day period beginning on the date of which the Archivist receives notification from a former President on the assertion of a claim of constitutionally based privilege against disclosure, the Archivist shall provide notice to the former President and the public of the decision of the incumbent President under paragraph (1) regarding the claim.

If the incumbent President determines not to uphold the claim of privilege asserted by the former President, the Archivist shall release the Presidential record subject to the claim at the end of the 90-day period beginning on the date on which the Archivist received notification of the claim, unless otherwise directed by a court order in an action initiated by the former President.

However …

Even if a former President’s claims of privilege are upheld, his records can still be accessed as evidence in a criminal proceeding (subject to a court order), and those records are always available to the current President, since he needs them to conduct the duties of his office. (Most obviously, the current President can’t know whether to uphold a predecessor’s claim of privilege on a specific document if he doesn’t know what is in the document.)

In summary, there is no procedure that will allow Trump to regain possession of the documents, and there is no procedure that will allow Trump to shelter the documents from Biden’s eyes, but Trump may be able to keep Congress, the press and the public from access to those documents, subject to review by Biden and the courts.

“Sean Hannity claims that Trump being sent to jail would not necessarily be a road block of any kind in terms of him deciding to run for president in 2024.”

Interesting point and basically correct.

Eugene V. Debs was in a penitentiary, serving a ten-year sentence, when he lost the 1920 presidential election.

Professor Laurence Tribe of Harvard Law, a pre-eminent constitutional scholar, has pointed out that Trump could run and even govern from his cell, quipping that Trump could even deliver the State of the Union address ‘via Zoom while wearing orange prison garb.’” Other legal scholars seem to be in unanimous agreement.

The original Constitution, amended by the 14th and 25th Amendments, covers the qualifications for the office of President, as well as the reasons and procedures for removing him or her. The bottom line is this: Political office is the one job where the candidate is not required to have any employment-related qualifications. You don’t need an education. You don’t need to be intelligent. You don’t need to be sane. You don’t need a clean criminal record. You can literally be in jail. As long as you will turn 35 before assuming office, have lived in the country for at least 14 years, and are a native-born citizen, you’re golden to be President as long as you win the electoral college. Basically, the President of the USA has a lower bar to clear than a KwikStop night clerk.

The 14th amendment does add another requirement:

No person shall hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.

So Trump could be disqualified if he is convicted of that specific crime.

Some liberals have quoted 18 U.S. Code § 2071, subsection b, to say that Trump could be disqualified for mishandling the documents sought in the Mar-a-Lago raid, to wit:

Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States.

While it is technically correct that Trump could have violated this law, and that a conviction would disqualify him under the law’s terms, that paragraph is clearly unconstitutional. If Trump were convicted of that and wanted to run for President again, he would petition the courts, and the Supreme Court would allow him to run without even debating it. The Constitution specifies the requirements to install or remove a President, and the Congress can’t declare new procedures on its own. That’s obviously a violation of the separation of powers, but over and above that it’s just plain silly. If the Congress had unchallenged power to establish new requirements for the Presidency, today’s Democrats could write a new law disqualifying anyone who was over 180 pounds. Such shenanigans are unconstitutional, and the Constitution itself is difficult to amend.

“The former vice president and other prominent Republicans are not only praising the end of Roe v. Wade but signaling bigger plans to strip women of their rights”

I don’t doubt that he sincerely believes this to be right, but there is more than his moral conviction behind this public declaration. In pursuing the 2024 nomination, Pence is looking for a strategic differentiation from Trump and DeSantis, and this is an obvious appeal to the powerful evangelical base of the conservative movement.

Given that conservatives are feeling their oats because of the current configuration of the Supremes, many are wondering which other “unenumerated rights” may be threatened because they are not specifically mentioned in the Constitution.

Clarence Thomas seems to have his sights set on other cases involving the right to privacy:

• The right to contraception that the court set out in 1965 in Griswold v. Connecticut.
• The court’s 2003 decision in Lawrence v. Texas that the Constitution prevents states from criminalizing private homosexual conduct
• The court’s declaration in Obergefell v. Hodges (2015) that gay individuals may marry the person of their choosing.

Thomas’s interest in Obergefell is an especially interesting one, since a direct precedent of that decision is Loving v. Virginia (1967), in which the court struck down Virginia’s ban on interracial marriage. In Obergefell, the Supreme Court invoked Loving, among other cases, as precedent for its holding that states are required to allow people to marry whom they choose, under both the Equal Protection Clause and the Due Process Clause.

Thomas is a black person married to a white person – the very situation that led to the conviction of the Lovings, which was overturned by the decision of the Supremes! If Loving were to be challenged, would Thomas have to recuse himself?

——————

Yes, that’s right. It seems impossible to believe, even for those of us who have lived through all the turbulent subsequent years, but as recently as when I was in college, Virginia had a law forbidding interracial marriage.

You political junkies know how important this was. The future of Ukraine, the future of NATO, and maybe even the future of the European Union hung in the balance. Macron’s opponent is a pro-Putin right-winger.

He did win by a comfortable 16-17 points or so, but consider this: (1) he defeated the same woman by 32 points the last time they faced off; (2) 41% of the French people voted for a pro-Putin candidate during a Putin-ordered war. We live in troubled times.