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      Will Trump provoke a crisis of legitimacy for the US supreme court? | Sidney Blumenthal

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      Donald Trump’s packing of the supreme court, to which he appointed three members, to create a reliable conservative majority, has been hailed by the right as his greatest achievement. The Wall Street Journal editorial page has stated that the most important prospect of a second Trump term would be his appointment of federal judges in their mold. But Trump’s candidacy for that second term now poses an existential threat to the legitimacy of the court’s conservative majority.The decision earlier this week by the Colorado supreme court disqualifying Trump from the state ballot strikes at more than Trump’s eligibility. It cuts to the core of the ideological doctrines of originalism and textualism that underpin the conservative majority’s entire jurisprudence. Originalism claims to divine the original intent of the country’s founders and interprets the constitution along those lines. Using cherry-picked, false and bad-faith history, originalism has been the pure pretext for overturning Roe, dismantling commonsense gun regulations, ending environmental regulation, gutting consumer protection and voiding voting and civil rights.Originalism is a recent contrivance, patched together as part of the “gameplan”, as Trump’s court whisperer, the Federalist Society’s Leonard Leo, describes it, of the capture of the courts to entrench the right’s agenda beyond the threat of adverse political tides for generations to come.Textualism is the sister doctrine of originalism, providing snatches of text from the constitution divorced from social and legislative context as if in scriptural fundamentalism to undergird the reversal of rights. It claims that to interpret a law, a judge may examine the plain meaning of its text but nothing else. It works hand in hand with originalism to exclude inconvenient portions of the historical record from judicial consideration.But now this politicized jurisprudence has turned on its inventors. If ever there is a legal ruling of ironclad constitutional reasoning that can be defended on originalist and textual grounds it is in Anderson v Griswold, the decision issued last week by the Colorado supreme court. The decision holds that Trump engaged in insurrection on 6 January 2021, and that he is therefore barred for running for president under section three of the 14th amendment.Trump’s appeal to the supreme court creates a crisis for the entire conservative methodology. If the court denies certiorari, declining to rule on the case, or upholds the Colorado decision, Trump would face disqualification cases in states across the country, throwing the election into chaos. The Republican sponsors of the conservative court are panicked and enraged. The Wall Street Journal, the veritable mouthpiece of justices Clarence Thomas and Samuel Alito, is loudly decrying the Colorado “folly”.The conundrum for the court is that it can rescue Trump only by shredding originalism and textualism. There is no more originalist and textualist case to be made than this one. But this time, the solidity of the case is not based on specious doctrine. Here the logic can rightfully be said to be rooted in history and the constitution.Two leading conservative legal scholars, William Baude, of the University of Chicago law school, and Michael Stokes Paulsen, of the University of St Thomas law school, arguing on strict originalist grounds, state unequivocally that Trump is constitutionally barred from running for office. Section three of the 14th amendment prohibits anyone who has held public office sworn to uphold the constitution and who then engages “in insurrection or rebellion” from ever holding office again. The amendment, Baude and Paulsen demonstrate, is “binding”, “general”, “prospective” and “self-executing”, requiring “no implementing legislation”, and they say “disqualification is sweeping in its terms”.The Colorado supreme court found, without disagreement, and by clear and convincing evidence, that Trump indeed engaged in insurrection on January 6. Consequently, the case is, on originalist and textual as well as historical grounds, open and shut. On the facts and the law, the court majority faces a brutal dilemma: either uphold Trump’s disqualification or shred the doctrine on which their conservative jurisprudence stands.The only escape hatch, for the court and for Trump, would be a momentary, politically derivative expedient, such as asserting that Trump has been denied due process because he has not been criminally prosecuted for insurrection. Alternatively, the justices could seize upon what has become the media pundit’s panacea, that there are no disqualifications except the horserace itself, falsely invoking democracy as superior to the constitution, which defines American democracy. Or the court could claim that Trump ultimately has immunity from any charges of insurrection, placing the former president above the law. Yet, seizing on that sort of solution would contradict the constitutional nature of the disqualification, the stated intent of its framers and the historical record.The due-process argument is less an escape hatch than a dead end. The notion that the court might relieve Trump because he is not, at least yet, convicted for the insurrection of January 6 would contradict the character of all constitutional disqualifications, which do not depend upon criminality. Mark Graber, of the University of Maryland school of law, the leading scholar on section three, has definitively shown that “Republicans insisted section three sets out a new qualification for office, not a punishment for a criminal offense”. Graber quotes the senator Lot M Morrill of Maine as representative of the overwhelming view of the 14th amendment’s framers, that there was “an obvious distinction between the penalty which the State affixes to a crime and that disability which the State imposes and has a right to impose against persons whom it does not choose to intrust with official station”.Graber further quotes the senator Waitman Willey of West Virginia that section three was “not … penal in its character, it is precautionary”. Most importantly, Willey emphasized that the measure applied not just to the aftermath of the civil war, but was permanent: “It looks not to the past, but it has reference … wholly to the future. It is a measure of self-defense.”Some pundits have offered up the widely ridiculed case In re Griffin, of 1869, as a vehicle for the court to evade its Trump tangle by holding that the 14th amendment imposes no disqualification since Congress never passed a law specifically about it. In that case, the chief justice, Salmon P Chase, stated that section three was not self-executing but required enabling legislation. His position directly contradicted the one he took the year before, in presiding over Confederate president Jefferson Davis’s treason trial, that section three was self-executing and that its punishment voided other charges against him – advice Chase himself offered to Davis while acting as the judge in the trial in which he dismissed the case.Chase’s positions were “illogical and cannot be explained by legal analysis” according to Gerard N Magliocca, of the Indiana University school of law, the leading expert on the provision. Chase’s claim that section three was not self-executing was “unpersuasive”, “flawed” and marked by “inconsistency”. Baude and Paulsen deride Chase’s decision as “simply wrong … full of sleight of hand, motivated reasoning and self-defeating maneuvers” and said it “should be hooted down the pages of history, purged from our constitutional understanding of Section Three”.Again, the historical background matters. Chase, former icon of radical Republicanism, was in 1869 attempting to win the Democratic party nomination for president. He had always been ambitious to be president, seeking the office continually since 1852. He had run a covert campaign against Lincoln’s re-election in 1864, its exposure prompting him to quit the cabinet as the secretary of treasury. Lincoln, who said of Chase’s ambition that he had “the presidential maggot in his brain”, named him chief justice. In 1869, at the time of In re Griffin, Chase had taken a southern tour to gain political support. The New York Herald editorialized that Chase “has been hailed as the coming man by the Southern conservatives”.Citing In re Griffin, however, would be in the tendentious spirit of the supreme court’s ruling in Bush v Gore, which halted the counting of votes in Florida and delivered the presidency to George W Bush. That decision, written by justice Antonin Scalia, invoked the 14th amendment to assert that Bush would be unfairly disadvantaged if the vote counting proceeded. Privately, Scalia said of his ruling: “As we say in Brooklyn, a piece of shit,” according to Evan Thomas’s biography of Sandra Day O’Connor. If the court were to seize upon the thin reed of In re Griffin, it would be in the spirit of grabbing any available tool to achieve the results it seeks as in Bush v Gore, ie, “a piece of shit”.Section three was adopted to prevent former leaders of the Confederacy from returning to control of the state and for federal governments to restore their power and rescind reconstruction. The Confederate vice-president, Alexander H Stephens, most prominently, was elected the US senator from Georgia, but under section three he was disqualified from holding the office. Stephens had been briefly arrested after the war, but never charged with a crime. Not a single one of the former Confederate leaders who were disqualified under section three were ever charged or tried, for insurrection or any other charge. Disqualification under the 14th amendment required no criminal conviction then and requires none now. It is a constitutional prerequisite for holding the presidency, no more or less than being 35 years old and native-born.The senator Lyman Trumbull, of Illinois, one of the key figures in the passage of the 14th amendment, observed during the debate that the constitution “declares that no one but a native-born citizen of the United States shall be President … Does, then, every person living in this land who does not happen to have been born within its jurisdiction undergo pains and penalties and punishment all his life, because by the Constitution he is ineligible to the Presidency?” No criminal trial was required for disqualification.If the supreme court were to decide that Trump must be tried and convicted of insurrection in order to be disqualified, it would severely undermine the intent of the Constitution as well as all precedents. If the court cites Chase’s In re Griffin, then it should reconcile it with Chase’s contrary position in the Jefferson Davis trial. Of course, this cannot be done. All of this would be Bush v Gore squared.The drafters and supporters of the 14th amendment were explicit that the ban on insurrectionists included candidates for the presidency. In the first draft, the language provided that insurrectionists were excluded from holding “the office of President or Vice President of the United States, Senator or Representative in the national Congress, or any office now held under appointment from the President of the United States, and requiring the confirmation of the Senate”.The specific references to the president and vice-president were dropped, but only to be subsumed to identify a broader range of office-holders of “any office, civil or military”. The senator Reverdy Johnson of Maryland raised the question of the omitted mention of the president and vice-president in the floor debate in the Senate on 30 May 1866. Johnson had been the attorney general under President Zachary Taylor. “But this amendment does not go far enough,” he said. Morrill explained that the overarching language indeed covered those offices.As it happens, no insurrectionist after the civil war ever ran for president until now. The closest anyone with an association to the Confederacy came was the nephew of James D Bulloch, the agent who ran the Confederate secret service operation in England. That nephew was Theodore Roosevelt, who was given a ring on the day of his inauguration in 1905 containing a hair that his secretary of state, John Hay, cut from Lincoln’s head on his deathbed when Hay was his personal secretary.skip past newsletter promotionafter newsletter promotionTrump’s defense is that as president he was an officer, but not, as the Colorado supreme court ruled, “under the United States”. He was instead the government itself. L’État, c’est moi is not a constitutional principle, helas, except as claimed by Richard Nixon: “When the president does it, that means it’s not illegal.” Trump’s defense is malignant narcissism translated into legalese.One of Trump’s apologists, Michael Mukasey, George W Bush’s former attorney general, writing in the Wall Street Journal, repeated Trump’s sophistry while adding that the phrase “officer” “refers only to appointed officials, not to elected ones”. But his invention is refuted by the plain historical record. As a textual matter, the Colorado ruling notes that the constitution mentions the president as an “office” 25 times, in clause after clause, as well as quoting Alexander Hamilton’s Federalist Paper No 69 as saying: “The President of the United States would be an officer elected by the people … .”Trump himself as president has called himself an “officer”. When he criticized the justice department for issuing sentencing guidelines to be applied to the criminal convictions of his close associates Roger Stone and Mike Flynn, Trump tweeted it was a “miscarriage of justice”. In the spirit of impunity, he proclaimed: “I’m actually the chief law enforcement officer of the country.” In fact, the president is not. The attorney general is the chief law enforcement officer. Nonetheless, Trump recognized himself as an “officer”, presumably under the United States. (Shortly after the incident, he pardoned Flynn and commuted Stone’s sentence.)Trump has also weighed in numerous times on the question of whether constitutional disqualification is self-executing. In his spurious and vile campaign claiming that Barack Obama was not a natural-born citizen, his birther lie, Trump stated on many occasions that if Obama could not prove his nativity, then he should be disqualified from holding office. There was no need for enabling legislation or a court ruling. “I think it’s an important fight because, you know, essentially you’re right down to the basics,” he told Fox News in 2012. “The answer is if you’re not born here, you can’t be president. So it’s not like, ‘Oh, gee, let’s not discuss it.’”Trump repeated his belief that constitutional disqualification was self-executing in 2016 against the senator Ted Cruz of Texas, a Republican primary opponent, whom Trump falsely said was not a natural-born citizen and therefore could not hold the presidency. “I don’t want to win it on technicalities, but that’s more than a technicality. That is a big, big factor,” he said. The factor Trump hyped was a lie, but the “technicality” that disqualification is self-executing is not.If section one of the 14th amendment, establishing natural birth in the US as a basis of citizenship, is self-executing, so is section three establishing disqualification for office on the basis of being an insurrectionist. Moreover, both of those provisions are as self-executing as the amendment that preceded them: the thirteenth amendment abolishing slavery. Lincoln called it “the king’s cure” as a self-executing constitutional measure to supersede and nationalize the Emancipation Proclamation, which was a military order and could not be sustained once the war ended. Once enacted, the thirteenth amendment went into effect. Slavery was abolished. Congress was given the power to enforce it.Moreover, as the Colorado supreme court opinion pointed out, it is incorrect to conflate actions that are “textually committed” to Congress’s exclusive authority with actions that are merely “textually authorized”. Section three is still self-executing in the sense that the judiciary has the power to interpret and apply it, even if Congress has overlapping authority but has chosen not to legislate on the subject.The Colorado supreme court decision makes clear the constitutional logic that inextricably links these civil war amendments. “There is no textual evidence that Congress intended section three to be any different” from the other amendments, the Colorado court states: “ … interpreting any of the Reconstruction Amendments, given their identical structure, as not self-executing would lead to absurd results. If these Amendments required legislation to make them operative, then Congress could nullify them by simply not passing enacting legislation. The result of such inaction would mean that slavery remains legal … ”Some Trump defenders have bent history to say that there is no comparison between the events of January 6 and the civil war, the true insurrection that the framers of the 14th amendment had in mind. But bringing up the civil war only reinforces the already airtight case against Trump.The motive behind Trump’s attempted coup and the secession of South Carolina and subsequent southern states that initiated the civil war were exactly the same: both of these events were driven by rejection of the results of a presidential election. Trump organized his coup to “stop the steal” before the election, just as the secessionists organized their actions before election day. The Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union stated on 24 December 1860, that its precipitating reason was “the election of a man to the high office of President of the United States, whose opinions and purposes are hostile to slavery”.President-elect Lincoln expressed “real anxiety” about the electoral college certification on 13 February 1861. The general Winfield Scott stationed two batteries of artillery at the north portico of the Capitol and soldiers at the doors to check the credentials of everyone entering. Vice-President John C Breckinridge, who would later join the Confederacy as a general and secretary of war, presided with calm dignity. On January 6, the culmination of Trump’s coup, an attempt to disrupt the electoral college certification, there were more fatalities than in the bombardment of Fort Sumter on 12 April 1861. Nine people died in connection with the assault on the Capitol on January 6, five of them police officers, while one soldier died at Sumter during its evacuation. The insurrection of January 6 was an unprecedented violent and murderous event in its own right.The court heard and accepted the detailed evidence of Trump’s pattern of incitement and violence surrounding the insurrection from an expert witness on political extremism, Peter Simi, a sociologist from Chapman University who has provided training to the FBI, the Department of Homeland Security and the Department of Justice. “The Court concludes that Trump acted with the specific intent to incite political violence and direct it at the Capitol with the purpose of disrupting the electoral certification,” the Denver district court state judge Sarah Wallace ruled on 17 November. She dismissed his claim to free speech outright: “The evidence shows that Trump not only knew about the potential for violence, but that he actively promoted it and, on January 6, 2021, incited it. His inaction during the violence and his later endorsement of the violence corroborates the evidence that his intent was to incite violence on January 6, 2021 based on his conduct leading up to and on January 6, 2021.”Trump’s defense argued that an insurrection must be defined as “against” the constitution, not “the United States”. The district court judge rejected this patent absurdity. Based on the facts, she ruled: “The Court further concludes that the events on and around January 6, 2021, easily satisfy this definition of ‘insurrection.’” Trump then attempted to evade judgment by splitting semantic hairs, claiming that “engagement” was not “incitement”, again rejected by the court as a distinction without a difference: “Having considered the arguments, the Court concludes that engagement under Section Three of the 14th Amendment includes incitement to insurrection.” Thus, Trump was adjudicated to be an insurrectionist. But the district court declined to define the president as an officer of the US under section three, kicking the question to the Colorado supreme court, which decided the matter.Most importantly, Trump’s defense did not challenge the account heeded by the Colorado courts; nor did it present “alternative facts” about January 6, a Kellyanne Conway defense. It offered no objection to ruling that January 6 was an insurrection and that Trump is an insurrectionist. But that only reinforces the inescapability of Trump’s actions for the US supreme court majority.In taking up Trump’s appeal, the US supreme court cannot review the basic facts. It cannot call witnesses on its own. It cannot hear new witnesses. It cannot declare the Colorado court’s conclusions erroneous on the facts. Indeed, given that Trump has not challenged the facts, he may not in fact have a true basis for an appeal. The court could let the Colorado decision stand on that ground. But if it takes up the appeal, it must find an interpretation that flies in the face of both the overwhelming history and the self-evident constitutional text. Supporting Trump’s free and full license above the law would in this case expose the conservative majority’s originalism as a hollow conceit.If the court grants Trump a reign of impunity as well as total immunity for his past actions, it will also be opening the gate for his stated intention to abrogate the constitution to establish a dictatorship in the future. Section three, established as the “self-defense” of the republic for the future, will be rendered meaningless.
      Sidney Blumenthal, the former senior adviser to president Bill Clinton and Hillary Clinton, has published three books of a projected five-volume political life of Abraham Lincoln: A Self-Made Man, Wrestling With His Angel and All the Powers of Earth
      This article was amended on 26 December 2023. The date of the electoral college certification in 1861 was 13 February, not 13 January, as we originally said. More

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      A split among Democrats may threaten ‘the Squad’ – and help Trump – in 2024

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      A looming clash between the centre and left of the Democratic party could unseat members of the “the Squad” of progressives and hand a gift to Donald Trump’s Republicans in the 2024 elections.The war in Gaza has divided Democrats like no other issue and is likely to play a key role in party primaries that decide which candidates run for the House of Representatives.Squad members including Jamaal Bowman of New York, Cori Bush of Missouri and Ilhan Omar of Minnesota, who accuse Israel of fuelling a humanitarian disaster, are facing potentially well-funded primary challengers. Some Democrats fear that the infighting could weaken the party’s campaign in November.“A lot of us have seen the headlines that Squad or Squad-adjacent members could be in trouble this cycle,” said Chris Scott, the co-founder and president of the Advance the Electorate political action committee (Ate Pac), which recruits and trains young progressives. “When I look at 2024, this is not the cycle where we need to be getting in a battle within our home faction.“There is a much greater threat to us all that we need to be focused on. If you’re having a progressive and centrist go against each other in an open seat, that’s one thing, but to start taking shots at your own is a dangerous precedent and I don’t think we need to fall into that trap this cycle.”The left have won some notable victories during Joe Biden’s presidency but continue to push him on issues such as climate, immigration, racial justice and Gaza, where many are dismayed by his unwavering support for Israel. On 7 October Hamas killed 1,200 Israelis and took about 240 hostage; Israel has since bombed and invaded Gaza, killing about 20,000 people.Ideological tensions with moderates are set to spill into the open during a primary season that kicks off on 5 March with races in Alabama, Arkansas, California, North Carolina and Texas.Bowman faces a stiff challenge from George Latimer, a Westchester county executive who is an ardent supporter of Israel and could receive a financial boost from the American Israel Public Affairs Committee (Aipac). Bush has competition from Wesley Bell, a county prosecutor who described Bush’s initial response to the Hamas attack as not “appropriate”.Omar will be up against Don Samuels, a former Minneapolis city council member who came within two percentage points of her in a primary last year. The lawyer Sarah Gad and the air force veteran Tim Peterson have also filed to run against Omar in the primary.Centrists smell an opportunity to put progressives on the back foot over their voting records, not just on Israel but a host of issues.Matt Bennett, a co-founder and the executive vice-president for public affairs at Third Way, said: “The Squad for the most part has been problematic for Democrats generally because their voices are outsized and very loud and they have come to define what it means to be a Democrat in swing districts, and that can be very difficult.“We are not huge fans of primaries against incumbent Democrats – often those resources can be directed more forcefully elsewhere to try to beat Republicans – but Cori Bush has done and said a lot of things that are going to be weaponised against her Democratic colleagues and so we wouldn’t be heartbroken if she’s beaten by a more mainstream Democrat in a primary.”Squad members and their allies may also have to contend with pro-Israel Super Pacs and dark-money groups spending tens of millions of dollars on attack ads in a bid to unseat them. Critics say such ads often misrepresent progressives’ views to give the impression that they are cheerleading for Hamas.The Democratic Majority for Israel Pac (DMFI Pac) recently launched a six-figure ad campaign targeting the Michigan congresswoman Rashida Tlaib, the sole Palestinian American in the House and one of Biden’s most strident critics. Its narrator said: “Tell Rashida Tlaib she’s on the wrong side of history and humanity.”This week the DMFI Pac published its first round of endorsements for the 2024 election cycle, including 81 incumbent members of Congress. Its chair, Mark Mellman, said all the endorsees have demonstrated a deep commitment to the party’s values, “which include advancing and strengthening the US-Israel relationship”.The group added that, in the 2021-22 election cycle, DMFI Pac-endorsed candidates won more than 80% of their races, helping bring 21 new “pro-Israel Democrats” to Congress.Larry Jacobs, the director of the Center for the Study of Politics and Governance at the University of Minnesota, said: “The well-organised, and those with resources including money, are looking at the primaries as a way to settle scores.“The Squad has a target on its back. The Israeli Zionist interest have concluded that they underinvested in the last election and that a bit more would have defeated some of the candidates, including Ilhan Omar, who won by only 2%. The amount of money going in looks to be substantially larger.”The House primary stakes have been raised by 23 Democrats and 12 Republicans retiring, seeking other office or getting expelled, leaving a record number of open seats up for grabs. In Oregon’s third congressional district, Susheela Jayapal – whose sister Pramila is chair of the Congressional Progressive caucus – is running for an open seat but facing blowback for not signing a resolution that condemned Hamas.As the war continues and the death toll mounts, the issue becomes ever more rancorous. Scott, the Ate Pac president, warned: “I wouldn’t be surprised to see some of these primaries get nasty.“My worry is, do we get in a fight with the primaries and start trying to do all this spending going against Democrats because we don’t agree necessarily on the same issue and then we miss the mark and come up short in some of the open seats that we should be able to easily win?”He added: “I get the frustration, but if you’re talking about possibly actively spending money to primary somebody like Congresswoman Alexandria Ocasio-Cortez or even Rashida Tlaib, one, what type of message are we sending and then two, where are our priorities overall?”Scott argues that Democrats should instead focus efforts on candidates such as Mondaire Jones, who is aiming to win back his New York seat from Republicans, and Michelle Vallejo, who is running for the most competitive congressional seat in Texas. “As a party we have to be smart about how we play these and now is not the time to fall into that warring battle of ideologies,” he said.Others share the concern about losing sight of the bigger picture and the unique threat posed by Trump and far-right Republicans. Ezra Levin, the co-executive director of the progressive grassroots movement Indivisible, said: “High-profile, expensive primary fights this cycle that exacerbate fractures within the Democratic coalition are bad for Democrats’ chances in the general election – and thus bad for democracy.“As leaders of a grassroots movement dedicated to preventing Trump from returning to power, we’ve adopted a fairly simple test for all our strategic decisions over the next 12 months: will this move help or hurt our chances of beating Donald Trump and winning a Democratic trifecta in 2024? Aipac and DMFI’s latest moves clearly fail this test.”The argument over Gaza appears to have been shifting in progressives’ direction. In a recent opinion poll for the Wall Street Journal, 24% of Democrats said they were more sympathetic to the Palestinians, 17% sided with the Israelis and 48% said they sympathise with both equally.Biden, who often hovers in the ideological middle of the Democratic party, has gradually yielded to pressure to urge Israeli restraint and has warned that the country is losing international support because of “indiscriminate bombing”. But he has stopped short of calling for a permanent ceasefire.Norman Solomon, the national director of RootsAction and executive director of the Institute for Public Accuracy, said via email: “Scapegoating progressives is inevitable. That’s what corporate centrist Democrats and their allies routinely do. But primaries merely set the stage for the main event, which will be the showdown between the two parties for Congress and the White House.“Whatever the results of the congressional primaries, the momentous crossroads in the fall will determine whether the fascistic Republican party controls Congress for the next two years and the presidency for the next four. Progressives aren’t making such a calamity more likely. Biden is.” More

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      Trump asks appeals court to throw out 2020 election subversion charges

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      Donald Trump has asked an appeals court in Washington DC to throw out charges that he sought to subvert the 2020 election, in the latest of a series of high-stakes legal maneuvers between the former president’s lawyers and the US department of justice.In a filing late on Saturday lawyers for Trump argued to the DC circuit court of appeals that he is legally cloaked from liability for actions he took while serving as president.The move came a day after the US supreme court declined to expedite a request by the special counsel Jack Smith to consider the question of presidential immunity from prosecution.The latest filing is an incremental advance on the long-running legal duels between Trump and the special counsel, who may not now be able to bring the election interference complaint, one of four separate criminal cases against Trump, before a jury ahead of the next year’s election.If the election interference case is delayed, and Trump wins the election as current polls suggest he could, the former president could simply order all federal charges against him to be dropped.In Saturday’s 55-page brief to the appeals court, Trump’s lawyer D John Sauer argued in essence that under the US constitution one branch of government cannot assert judgement over another.“Under our system of separated powers, the judicial branch cannot sit in judgment over a president’s official acts,” Sauer wrote. “That doctrine is not controversial,” he added.The filing repeats what Trump’s lawyers have consistently said: that he was acting in an official capacity to ensure election integrity, and therefore under immunity because presidents cannot be criminally prosecuted for “official acts”.Under the constitution, only the Senate can impeach and convict a president – and that effort failed.In the filing, Sauer argued that executive immunity must exist because no president or former president has previously been charged with a crime.“The unbroken tradition of not exercising the supposed formidable power of criminally prosecuting a president for official acts – despite ample motive and opportunity to do so, over centuries – implies that the power does not exist,” he wrote.skip past newsletter promotionafter newsletter promotionHe also said that Tanya Chutkan, the judge due to hear case against Trump, was mistaken in her interpretation of limited presidential immunity when she wrote that Trump should still be “subject to federal investigation, indictment, prosecution, conviction and punishment for any criminal acts undertaken while in office”.The interplay of legislative, executive and judicial power now lie at the center of the 2024 election. Last week, Colorado’s supreme court ruled that Trump was ineligible to be on the ballot in that state because of his alleged actions to resist certification of the popular vote in 2020.But the implementation of the ruling was delayed until next month when the US supreme court may look at it.On Saturday evening, before heading to Camp David for the holiday break, Joe Biden said he “can’t think of one” reason presidents should receive absolute immunity from prosecution, as the Republican frontrunner Donald Trump has claimed. More

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      Nikki Haley surges in poll to within four points of Republican leader Trump

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      The former South Carolina governor Nikki Haley has pulled within four percentage points of frontrunner Donald Trump in New Hampshire’s 2024 Republican presidential primary, a contest which could prove closer than expected for the ex-president, according to a new poll.In an American Research Group Inc poll released on Thursday which had asked voters whom they preferred in the New Hampshire primary scheduled for 23 January, Haley earned 29% support to Trump’s 33%. That meant the gap between Haley and Trump was within the survey’s 4% margin of error after the former president had long held dominating polling leads in the race for the 2024 Republican White House nomination.Haley’s strong showing in the American Research Group Inc survey came a day after a poll from the Saint Anselm College New Hampshire Institute of Politics found she had doubled her support in the state since September, seemingly cementing her as a clear alternate choice to Trump for conservative voters. The Saint Anselm survey’s findings were more favorable to Trump, however, showing him with a 44% to 30% lead over Haley.But while Haley still has ground to gain to take the lead in the state, Trump coming in at less than 50% support “shows he has serious competition in the party”, the University of New Hampshire survey center director, Andrew Smith, has previously told USA Today.Haley’s strong poll showings appear to have drawn a mixed reaction from Trump, who is separately contending with more than 90 criminal charges as he seeks a second presidency.On one hand, he went on his Truth Social site on Friday and insulted Haley with his preferred nickname for her, writing: “Fake New Hampshire poll was released on Birdbrain. Just another scam!” He additionally spoke with rightwing radio show host Hugh Hewitt on Friday and dismissed the polls showing Haley performing well against him as “fake” and insisted he was untroubled by her as a potential primary contender.Yet citing two sources familiar with the conversations, CBS News reported on Friday that Trump had also simultaneously been asking his team about tapping Haley to serve as a vice-presidential candidate if he eventually wins the Republican primary to be the 2024 Oval Office nominee, which if accurate would be a sign that he covets capitalizing on her support. CBS said its sources had indicated the far-right reaction to a Trump-Haley ticket has been negative, however.Haley for now has been touting her recent polling performances.“Donald Trump has started to attack me,” Haley said at a campaign town hall on Wednesday in Iowa, where the caucuses that customarily kick off presidential election years are scheduled for 15 January. “He said, ‘I don’t know what this Nikki Haley surge is all about.’ Do you want me to tell you what it’s about? … We’re surging.”Haley was the US ambassador to the United Nations after Trump won the presidency in 2016, but she resigned in 2018. Prior to that, she was governor of South Carolina from 2011 to 2017.One of her more prominent acts as South Carolina governor was signing into law a ban on abortion which contained no exceptions for rape or incest. That ban took effect, along with similar ones in other states, after the US supreme court last year eliminated the federal right to abortion which had been established by the landmark Roe v Wade decision.Trump, for his part, faces 91 criminal charges accusing him of trying to forcibly reverse his defeat to Joe Biden in the 2020 presidential election, illegally retaining government secrets after he left the Oval Office and illicit hush-money payments to the adult film actor Stormy Daniels.He has also grappled with civil litigation over his business practices and a rape allegation deemed “substantially true” by a judge.skip past newsletter promotionafter newsletter promotionTrump more recently has been on the defensive against resurfaced claims that he kept writings by Adolf Hitler – the Nazi leader who orchestrated the murders of 6 million Jews during the Holocaust – by his bed.Academics, commentators and political opponents have been quick to link Trump’s recent remarks that certain immigrants were “poisoning the blood of” the US to rhetoric used historically by Hitler, Benito Mussolini and other authoritarian world rulers.“I know nothing about Hitler,” Trump said to Hewitt on Friday. “I’m not a student of Hitler.”He then implied having at least some familiarity with Hitler’s sayings in regards to purity of blood.“They say he said something about blood,” Trump told Hewitt. “He didn’t say it the way I said it, either, by the way. It’s a very different kind of statement.” More

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      Underdog contender for Democratic nomination says Biden ‘cannot win’ against Trump

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      Democratic congressman Dean Phillips, who is challenging incumbent president Joe Biden, will keep running his long-shot bid for the White House through the summer after he’s had more time to introduce himself to voters across the US.Phillips initially planned to run in a few states for his party’s presidential nomination, focusing especially on the crucial early-voting state of New Hampshire, which was seen as a trial balloon for his candidacy. But now, Phillips told the Guardian in an interview, he is aiming for a much longer campaign.By the summer, Phillips wants to compare head-to-head polling between him and former President Donald Trump, and Trump and Biden. If Biden fares better in the matchup, Phillips would support him. If Phillips fares better, he believes Biden should throw his support toward the congressman.“Those are my intentions, and I think those should be the intentions of every Democrat. Let’s find the candidate best positioned and most likely to win,” Phillips said.Phillips’ bullishness about his odds – and his strong belief that Biden will not win against Trump again – have kept his campaign in motion. The congressman, buoyed up by a personal fortune from his family’s distilling company and a gelato brand, hasn’t been deterred by the Democratic machine backing Biden. So far, Phillips has been his own main supporter, injecting $4m into his own campaign.As the New Hampshire primary nears next month, Phillips is feeling good about his chances there. Biden isn’t on the ballot in the state because national Democrats altered their calendar to put more diverse states earlier in the primary process, though the president’s supporters will mount a write-in campaign. That gives Phillips a leg up.The state offers the “lowest cost, highest probability opportunity to surprise people and to demonstrate my campaign”, he said.Since Phillips launched his campaign in October, after months of trying to goad more prominent Democrats to challenge the sitting president, he’s been met with a chorus of simple questions about who he is and why he’s doing this.His answer is simple: “Because Joe Biden is going to lose to Donald Trump.”Phillips’ presence in the race doesn’t really change that fact at this point – polls in New Hampshire show him far behind Biden. Recent polls back up his assertion, though, that the Democratic president isn’t going into the election year strong. Neither Biden nor Trump are well liked by the electorate, despite the seeming inevitability of the repeat matchup.“You can’t win a national election with 33% approval numbers,” Phillips said, referring to a recent Pew Research Center survey on Biden’s job rating. “And I don’t understand why I’m the only one out of 250-some Democrats in Congress to simply say the quiet part out loud: he cannot win the next election.”On policy, the two Democrats don’t widely differ. Phillips’ campaign isn’t an insurgent progressive campaign designed to move the centrist president further left. The main difference is a visual one – Phillips is much younger than Biden and Trump. He’s called for a new generation to lead the country forward.In that sense, though, his campaign draws attention to one of Biden’s weakest points, though Phillips argues the age differences are “pretty obvious” and not something he’s actively pointed out. “Neither of us can change our ages or stages of life.”By running a campaign against Biden, some Democrats fear Phillips is emphasizing the president’s flaws during a vulnerable time, ultimately further hurting Democrats’ ability to beat Trump in 2024. Phillips finds this notion “absurd”, saying that his presence should help Biden if it gets the president to come out and campaign or debate, to show himself to the voters more.While Biden’s poor polling animated Phillips’ campaign, the congressman has worked to fill in some of the details about who he’d be as a president. His political career has been short: three terms in Congress after flipping a longtime GOP seat in suburban Minnesota. He’s keen on pragmatic, bipartisan politics.skip past newsletter promotionafter newsletter promotionAs of now, the economy and affordability have risen as a primary focus for him, with plans to address the rising costs of healthcare, housing, education and daily expenses forthcoming, he said.He’s also changed his mind on one big issue after hearing “such horrifying, heartbreaking stories” from people since taking office: he now supports Medicare for All, as opposed to just a public option. He thinks it’s an issue on which Republicans and Democrats could work together.On the Israel-Hamas war, perhaps Biden’s weakest point within his own party at the moment, Phillips doesn’t track too far off from Biden. He is a “passionate supporter of the state of Israel” who believes the country has a right to defend itself and that the US and its allies should unify to support Israel. He also has an “equal affection for Palestinians” and believes they deserve self-determination and a state. He has argued for the release of hostages and a concurrent ceasefire.“I intend to be the first Jewish American president in our history,” he said. “And I want to be the one that signs documents that help found the Palestinian state for the first time because we cannot continue to allow this cycle of bloodshed and misery and destruction to occur any longer.”To get anywhere near the presidency, Phillips would need to overcome a Democratic party already working hard to re-elect its incumbent president. Some states, such as Florida and North Carolina, have already decided not to hold primaries for president.The structural odds bother Phillips, who sees them as anti-democratic. The political culture on both sides forces people to stay in line rather than challenge the status quo if they want to keep their careers in elected office, he said. He knows his congressional career is done because of his presidential run – he’s not running for his seat in Minnesota again. And if he loses, he presumes his political career is over too. It will be worth it to him to try to keep Trump out of the White House, he said.“We need more people willing to torpedo their careers in Congress like I did, to ensure that we do not torpedo the entire country,” he said.Given the president’s age, though, staying in the race longer could be a hedge in case something were to happen to Biden. In that instance, it’s still tough to see how Phillips would be the best man for the job, though he’d be the only mainstream Democrat who had the primary calendar on his side.Still, he hopes more Democrats will jump in the presidential race. “The water is warm. Come on in. That’s what I’ve been asking for for many, many months,” Phillips said. “It gets to a point where doing so gets harder and harder because of state ballot access. Already, I think 15 states are too late to get on the ballot. So yes, I wish that would have happened months ago.” More

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      in US Politics

      Supreme court declines to expedite decision on Trump’s immunity claim in 2020 election case

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      The US supreme court on Friday rejected a request by the special counsel to expeditiously decide whether Donald Trump has immunity from federal prosecution over his efforts to overturn the 2020 election results, before a lower appeals court issued its own judgment.The one sentence denial means the case is returned to the US court of appeals for the District of Columbia circuit, where a three-judge panel is scheduled to hear oral arguments in January, and the case against Trump remains frozen pending the outcome of the appeal.In declining to leapfrog the lower court and fast-track the appeal, the supreme court handed a crucial and potentially far-reaching victory to Trump as he seeks to delay as much as possible his trial, currently scheduled for next March in federal district court in Washington.The decision almost certainly slows down Trump’s federal election interference case. Even if the DC circuit rules against Trump quickly, the former president can first ask the full appeals court to rehear the case, and then has 90 days to lodge a final appeal to the supreme court.Trump was indicted in June by the special counsel Jack Smith for conspiring to impede the peaceful transfer of power, but sought to have the charges thrown out by contending he could not be prosecuted for actions he undertook as president that were related to his official duties.The filing contended that all of Trump’s attempts to reverse his 2020 election defeat in the indictment, ranging from pressuring his vice-president, Mike Pence, to stop the congressional certification to organizing fake slates of electors, were in his capacity as president and therefore protected.At the heart of the Trump legal team’s filing was the extraordinary contention that not only was Trump entitled to absolute presidential immunity, but that the immunity applied regardless of Trump’s intent in engaging in the conduct described in the indictment.This month, his motion was rejected by the presiding US district judge Tanya Chutkan. That set the stage for Trump, who had always expected the motion to fail, to lodge an appeal that would stay the case while the DC circuit considered the matter.Obtaining the stay was always part of Trump’s strategy – he is seeking delay because if he wins re-election before the trial occurs, he could arrange to have the charges dismissed – and his lawyers were counting on a lengthy appeals process that would buy the time.The strategy, according to people close to Trump’s legal team, involved Trump going to the supreme court and securing additional weeks or months of delay – only after weeks of delay before the DC circuit.But prosecutors attempted to preempt Trump’s ploy by asking the supreme court to bypass the DC circuit and resolve the immunity question directly. In court filings, the special counsel suggested keeping the March trial date was in the public interest.skip past newsletter promotionafter newsletter promotionThe request from prosecutors that the nation’s highest court rule on a case before judgment by an appeals court – and force Trump to contend with the Supreme Court plank of his delay strategy months earlier than he anticipated – was unusual but underscored the gravity of the moment.On Friday, the court essentially sided with Trump, who had argued the day before for the special counsel’s petition to be denied, arguing on procedural grounds that prosecutors had no basis to appeal a trial court ruling that was favorable to them and where the government had not suffered any harm.The denial, appellate experts said, underscored the peril of allowing trial prosecutors to help frame issues before the supreme court, instead of having the solicitor general’s office – which normally argues on behalf of the government – refine arguments to the sensibilities of the justices.The emergency petition on the Trump immunity question did not involve the solicitor general’s office. Although the filing was signed by former deputy solicitor general Michael Dreeben, it also included the special counsel himself and two of his deputies, JP Cooley and James Pearce. More

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      in Elections

      Trump pressured Michigan election officers not to certify 2020 vote – report

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      Donald Trump made a phone call in November 2020 in which he put pressure on two Republican election officers in Michigan not to sign the official document from the state confirming that Joe Biden had won the presidential election there, according to an exclusive report by The Detroit News late on Thursday.The Detroit News outlet has obtained recordings of the call, made on 17 November 2020, where Trump, who was refusing to accept that he had just lost the White House to Joe Biden, and Republican National Committee Chair Ronna McDaniel talked to Wayne county election officials Monica Palmer and William Hartmann and told them they would look “terrible” if they signed to endorse Trump’s defeat in the crucial swing state, according to the report.Palmer and Harmann were members of the Wayne county board of canvassers, one of the state’s official county teams – each with two Democrats and two Republicans – appointed by state election commissioners for duties such as inspecting ballots and certifying elections for all local, countywide and district offices.Trump told them on the phone call obtained and reported by the Detroit News that: “We’ve got to fight for our country. We can’t let these people take our country away from us.”McDaniel is from Michigan and was also reportedly on the call and told the two board members: “If you can go home tonight, do not sign it,” adding “We will get you attorneys.”Trump then added: “We’ll take care of that.”The newspaper further reported that representatives of Palmer, McDaniel and Trump, contacted by the reporter in question through spokespeople, did not dispute a summary of the call that was shared with them. The News said Hartmann died in 2021.On Thursday Trump campaign spokesman Steven Cheung issued a statement saying that Trump’s call was “taken in furtherance of his duty as president of the United States to faithfully take care of the laws and ensure election integrity, including investigating the rigged and stolen 2020 presidential election”.The call and then Palmer and Harmann’s refusal to add their signatures to Wayne county’s official certification of Biden’s victory at the ballot box was apparently designed to sow doubt about the accuracy of the result.Palmer and Hartmann’s refusal to sign the certification and a failed attempt to withdraw their votes from the day before in which they confirmed Biden’s victory in the county did not impede Biden’s win in Michigan. That was a crucial piece of his 2020 victory on behalf of the Democratic party, with he and now-US vice president Kamala Harris beating Republicans Trump and his Vice-President Mike Pence’s bid for re-election.The report of the phone call has strong echoes of the call Trump made on 2 January 2021, in which he pressed the secretary of state in Georgia, Brad Raffensperger, to “find” enough votes to overturn Joe Biden’s victory in that state, too. News of the phone call emerged almost immediately.The pressure on Raffensperger is part of the criminal case against Trump and multiple co-defendants in Georgia, accusing them in a racketeering case of an election interference conspiracy.skip past newsletter promotionafter newsletter promotionThe Wayne county tapes in Michigan are understood not to be part at this time of the federal election interference case against Trump brought by special counsel Jack Smith on behalf of the US Department of Justice.Michigan officials are still investigating Trump’s efforts to overturn his defeat in the state in 2020. The primary season for the 2024 presidential election begins in January and Trump is the frontrunner for the Republican nomination as he seeks re-election despite facing dozens of indictments in four criminal cases – two federal cases, in which the US supreme court has now become involved, as well as one in New York and the one in Georgia.Jonathan Kinloch, a Wayne county board of canvassers member, but one of the two Democrats, told the Detroit News that the phone call from Trump and McDaniel that the outlet just reported was “insane”.“It’s just shocking that the president of the United States was at the most minute level trying to stop the election process from happening,” Kinlock told the News. More

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      in US Politics

      How Trump’s anti-immigrant rhetoric is taking over the Republican party

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      Donald Trump has the tacit blessing of senior Republican figures as he seeks to put border security front and center of the 2024 election by deploying fascistic language to fire up his support base, political analysts warn.The frontrunner for the Republican presidential nomination in 2024 has called for a sharp crackdown on immigration and asserted at a weekend rally that migrants are “poisoning the blood of our country”.The comment drew on words similar to the Nazi leader Adolf Hitler in his autobiography and manifesto Mein Kampf.But, despite widespread condemnation of Trump’s remarks, some top Republicans have shied away from criticizing the former US president, who is the overwhelming favorite to win the party’s nod to face off against Joe Biden in the race for the White House.Senator Lindsey Graham of South Carolina told NBC’s Meet the Press: “I could care less what language people use as long as we get it right … I think the president has a way of talking sometimes I disagree with. But he actually delivered on the border.” Nicole Malliotakis, a New York congresswoman, told CNN: “He never said ‘immigrants are poisoning’, though … He didn’t say the word ‘immigrants’.”And this week Greg Abbott, the Republican governor of Texas, signed a law that allows police to arrest migrants suspected of crossing the border illegally and permits judges to order them to leave the US. Karine Jean-Pierre, the White House press secretary, said: “It is very much in line with what many Republicans like to do or tend to do, which is demonise immigrants and also dehumanise immigrants.”Activists note how the Republican party has veered right with Trump. Maria Teresa Kumar, president and chief executive of Voto Latino, a grassroots political organisation, said via email: “Trump may say the quiet parts loud, but he’s far from alone. There were members of the Republican party not long ago who understood the need for bringing the country together. [President George W] Bush, a Texan, sought immigration reform.“Today, we see elected Republicans use rhetoric and policies for political expediency at the cost of unification. There is no doubt that we are living in a multicultural democracy – the first in history. Instead of embracing this superpower that will serve us well on the world stage, they choose division that hurts millions of fellow citizens.”Immigration is one of the most divisive problems in American politics, and bipartisan reform attempts have repeatedly failed over the past two decades. On Tuesday leaders of the Senate said a deal to bolster border security and provide additional aid to Ukraine is unlikely to come together soon.The White House’s willingness to consider concessions, and even a revival of Trump-like policies, has drawn fierce condemnation from progressives in Congress and activists who say the ideas would gut the asylum system and spark fears of deportations from immigrants already living in the US.Kumar warned against policymaking based on fearmongering. “Right now, extremists have taken the issue hostage, and they are making a commonsense solution impossible. The current immigration debate is way out of step with where Americans are on the issue, and I expect this will drive Latinos and moderates to the polls in 2024.”While Trump’s language echoes Nazis in its extremism, it arrives in the context of years of Republicans shifting the boundaries of what is deemed acceptable. Tom Tancredo, a former congressman from Colorado, pushed for strict immigration laws and enforcement and was accused of ties to white nationalist groups.Steve King, a former congressman from Iowa, once compared immigrants to dogs and defended the terms “white nationalism” and “white supremacy”. (King has recently campaigned with the rightwing Republican candidate Vivek Ramaswamy in Iowa.) Nativist dog whistles have now been replaced by a totalitarian bullhorn.Joe Walsh, elected to Congress in the populist Tea Party wave of 2010, said of Trump’s recent comments: “As someone who used to say shit like that too much, I know that this issue animates the Republican party base better than any other issue, so Trump will keep saying shit like this because it works.”skip past newsletter promotionafter newsletter promotionMore than seven in 10 Republicans (72%) say newcomers are a threat, compared with a far lower percentage of independents (43%) and Democrats (21%), according to a recent survey by the Public Religion Research Institute thinktank in Washington. Two in three Republicans agree with the “great replacement” theory, which posits an elite conspiracy to supplant and disempower white people.Walsh, now a podcast host and outspoken Trump critic, added: “The Republican party base is older and white. You can scare the shit out of them by talking about all these brown and Black people coming from all these different countries into America and it’s going to change America. That scares the white party base more than anything.”But while Democrats abhor Trump’s choice of words, some may be vulnerable to the underlying message. As record numbers cross the US-Mexico border, seven in 10 voters disapprove of the president’s performance on immigration, according to a Monmouth University opinion poll released this week. It is no longer an issue for border states alone as thousands of migrants are bussed to major cities.Walsh commented: “Democrats better watch out because this issue – not Trump’s language – is a huge vulnerability for Joe Biden and the Democrats. There are a lot of people outside of the Maga [Make America Great Again] base who care about our border but are too afraid to say anything. This issue has resonance.”Democrats are on the defensive. At a press conference, Chuck Schumer, the majority leader in the Senate, conceded: “What Donald Trump said and did was despicable, but we do have a problem at the border and Democrats know we have to solve that problem, but in keeping with our principles.”For many it is cause for alarm ahead of next year’s presidential election, expected to be a rematch between Biden and Trump. John Zogby, an author and pollster, said: “What had been evenly balanced between Democrats and Republicans on the border and on undocumented workers has shifted now towards Trump.“He is defining the issue. The stance on border security is much more defined and much more the dominant position than the issue behind fairness, equity, even the role of federal government. Those who care about undocumented workers are just not in the mainstream any more.” More