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      Erwin Chemerinsky on the need for a new US constitution: ‘Our democracy is at grave risk’

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      Among progressive scholars of the US constitution, Erwin Chemerinsky, dean of Berkeley Law, is widely considered pre-eminent. Now 71, he studied at Northwestern and Harvard and has also taught at DePaul, USC, Duke and UC Irvine. He has argued several cases at the US supreme court and written extensively about it.His last book, Worse Than Nothing, was a broadside against originalism, the doctrine touted by rightwing justices as they take an axe to hard-won rights. In his new book, Chemerinsky goes to the root of the problem with a still starker title: No Democracy Lasts Forever: How the Constitution Threatens the United States.Less than a hundred days from a presidential election which could see the return of Donald Trump, a candidate widely held to threaten cherished freedoms, Chemerinsky says: “I see an American government that is increasingly dysfunctional and that has lost the confidence of the people, in a society that is increasingly politically polarised. I worry greatly for the future of American democracy.View image in fullscreen“I wrote the book to explain how much of the problem stems from the constitution and suggest how it can be fixed.”In conversation, Chemerinsky patiently outlines the problem. It boils down to this: the US constitution is not fit for purpose.It was created in 1787 by a small group of white men who hashed out a deal in their own interests, chief among them protecting smaller states and owners of enslaved people. Those framers made foundation stones of economic and racial inequality and also erected enduring barriers to political equality including an electoral college that makes minority victory possible in presidential elections and two senators for each state regardless of population.The constitution has been changed, significantly in 1791, with the 10 amendments of the Bill of Rights, and between 1865 and 1870, after the civil war, with amendments to abolish slavery, expand the citizenry and give Black men the vote. There have been other major changes, not least the 19th amendment, which gave women the vote in 1920. A century later, though, change seems harder than ever.Consider the plight of the Equal Rights Amendment, which simply says “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex” and which, as Chemerinsky describes it, “was passed overwhelmingly by Congress in 1972” as “a simple and un-objectionable statement”, but “even though 38 states at some point ratified it … is still not part of the constitution”.The ERA is stymied by pure politics. Pure politics – as practised by Republicans who benefit most from the enshrinement of minority control, as found in the stubborn persistence of Senate rules such as the filibuster that exist to block change – is of course eternal. And so as another election year grinds on, Democrats hoping to fend off Trump, Republicans seeking to tighten their grip on the levers of power, there the constitution sits, physically in the National Archives in Washington, theoretically near-impossible to change.Chemerinsky offers pointers to how change might be achieved – mostly by Democrats winning majorities in statehouses and Congress and working to sway public opinion towards the need for radical change, via a new constitutional convention. But he concludes with striking pessimism.“Our government is broken and our democracy is at grave risk, but I don’t see any easy solutions,” he writes. “A book that describes problems ideally should offer realistic fixes, but none are apparent … I desperately want to be wrong, either about my premise (that American democracy faces a serious crisis), or my conclusion (that fixing the problems will be hugely difficult or even impossible).”In conversation, Chemerinsky strikes a more hopeful note.“The constitution is revered,” he says, referring not just to the document itself but to rhetoric, teaching and even popular entertainment that has made demigods of Alexander Hamilton, James Madison and other framers. “That reverence has a cost in that it has kept us from focusing on its flaws and how much they contribute to our crisis of democracy.“I have argued that there should be a progressive interpretation of the constitution. But I also think it is time to begin considering a new constitution. I think people could ratify a new constitution even though this mechanism is not provided for in the constitution.”In short, as in most aspects of politics, it’s all a matter of will.On the page, Chemerinsky also devotes space to the question of free speech, a right guaranteed by the first amendment but forever contested. Among progressives, such contests now rage regarding protests against US support for Israel in its war in Gaza. Last April, that debate burst into Chemerinsky’s backyard – literally. A traditional dinner for students, given with his wife, the law professor Catherine Fisk, was interrupted by protesters.As Chemerinsky wrote, for the Atlantic, he was “stunned to see the leader of Law Students for Justice in Palestine … stand up with a microphone that she had brought … and begin reading a speech about the plight of the Palestinians”.Chemerinsky and Fisk “immediately approached her and asked her to stop speaking and leave the premises. The protester continued. At one point, [Fisk] attempted to take away her microphone. Repeatedly, we said to her: ‘You are a guest in our home. Please leave.’“The student insisted that she had free-speech rights. But our home is not a forum for free speech; it is our own property, and the first amendment – which constrains the government’s power to encroach on speech on public property – does not apply at all to guests in private backyards.”It was one dramatic and traumatic event in an episode that has turned the left against itself. Understandably, Chemerinsky is guarded about what happened in his backyard in April and its implications. But he is happy to explain his approach to free speech issues.“Absolutism rarely makes sense,” he says. “Free speech cannot be absolute. Perjury is speech, but it can be punished. An employer who says to an employee, ‘Sleep with me or you’re fired,’ is engaged in speech, but can be held liable. No one suggests gun rights can be absolute. No one believes that there is a right to have guns in courthouses or airports.”No one in normal society, perhaps. In the age of Trump, extreme beliefs surge.Chemerinsky also grapples with the specter of secession, amid increasing debate over the idea that in an age of deep division, states either right or left, red or blue, might decide to start out anew, perhaps prompting a new civil war.To Chemerinsky, secession by progressive states is just as possible as a rightwing move to secede, particularly if Trump wins the White House and Republicans take full control of Congress.“I do not think secession is likely,” he says, “and I certainly don’t think it is desirable. But I think it is a possible path we could be discussing more in the years ahead if there are not changes.”

      No Democracy Lasts Forever is published in the US by Liveright More

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      in Elections

      Supreme court immunity ruling to cause new delay in Trump 2020 election case

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      Donald Trump’s criminal prosecution over his efforts to overturn the 2020 election is expected to be delayed by another month after special counsel prosecutors said they had not finished assessing how the US supreme court’s immunity decision would narrow their case.On Thursday, the prosecutors on special counsel Jack Smith’s team told Tanya Chutkan, the US district judge presiding over the case, that they needed her to delay until 30 August a deadline to submit a possible schedule for how to proceed with a complicated fact-finding mission ordered by the court.“The Government continues to assess the new precedent set forth last month in the Supreme Court’s decision in Trump v United States, including through consultation with other Department of Justice components,” prosecutors wrote in a two-page court filing.“The Government has not finalized its position on the most appropriate schedule for the parties to brief issues related to the decision. The Government therefore respectfully requests additional time to provide the Court with an informed proposal.”The supreme court ruled last month that former presidents are entitled to some degree of immunity from criminal prosecution, marking a victory for Trump.Precisely what prosecutors are now stuck on remains unclear, although the ruling struck some of the charges against Trump and is expected to see Chutkan needing to pare back the indictment further.Trump is accused of overseeing a sprawling effort to subvert the results of the 2020 presidential election, including two counts of conspiring to obstruct the certification of the election results, conspiring to defraud the government, and conspiring to disenfranchise voters.The alleged illegal conduct includes Trump pressing justice department officials to open sham investigations, Trump obstructing Congress from certifying the election, including by trying to co-opt his vice-president, Trump helping prompt the Capitol attack, and Trump’s plot to recruit fake electors.View image in fullscreenThe supreme court decided that criminal accountability for presidents has three categories: core presidential functions that carry absolute immunity, official acts of the presidency that carry presumptive immunity, and unofficial acts that carry no immunity.The ruling meant that the charges related to core executive functions will be thrown out, and for Chutkan to determine through a fact-finding exercise if any other charges that might come under official acts must be expunged.Whether Chutkan will do the fact-finding on legal arguments or legal briefs, or will consider evidence perhaps given by witnesses, was supposed to become clearer after Trump and the special counsel jointly submitted the now-delayed scheduling brief.skip past newsletter promotionafter newsletter promotionTrump’s lawyers are expected to ask for few or no witnesses, the Guardian has previously reported. And in a statement on Truth Social, Trump called anew for the case to be tossed: “It is clear that the supreme court’s historic decision on immunity demands and requires a complete and total dismissal.”The deadline for the scheduling brief was the first activity in the case since December, when it was frozen after Trump asked the US court of appeals for the DC circuit and then the supreme court to consider his argument that he had absolute immunity from criminal prosecution.The supreme court issued its immunity ruling on 1 July, but the case only returned to Chutkan’s jurisdiction last week because of the court’s 25-day waiting period for any rehearing requests, and an additional week for the judgment to be formally sent down to the trial judge.Trump has already been enormously successful in delaying his criminal cases, a strategy he adopted in the hope that winning the 2024 election would enable him to appoint a loyalist as attorney general who he could direct to drop the charges.It is all but impossible now for the special counsel to bring the case to trial before election day, given Trump can make interim appeals for any decisions that Chutkan makes about the impact of the immunity decision. More

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      in US Politics

      A genocidal war criminal will address Congress. As a congressman, I’m outraged | Jamaal Bowman

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      The United States and our federal government love to portray ourselves as leaders in peace, diplomacy and human rights. In the eyes of the world, we want to be seen as collaborators and coalition-builders, working together to solve problems around the world.The reality in the halls of power is very different.On Wednesday, Benjamin Netanyahu will come to the People’s House to give a joint address before members of Congress, one of the highest honors afforded to foreign leaders. The Israeli prime minister was invited in the midst of what the international court of justice has determined to be a plausible genocide by the Israeli government.We are at a pivotal moment in our democracy and our society where we have to ask ourselves: how do we want to be represented on the global stage? What do we stand for as a nation if we are inviting an accused war criminal to address a joint session of Congress as he inflicts collective punishment on hundreds of thousands of Palestinian civilians, mostly women and children? Platforming a war criminal should not be our answer.Last month, I had the opportunity to meet with Sara, a 17-year-old girl from Gaza whose home was bombed by Israeli forces. Her two brothers, Ahmad and Mohamed, were killed, and she suffered deep burns across her entire body. She was unable to leave her house to seek medical treatment for a month because Israeli forces surrounded her home. Luckily, she was able to come to the United States to seek treatment but she is still afraid for the safety of the family she left behind.I have also met with families of Israeli hostages who are worried for the safety of their family members as Netanyahu continues to inflict collective punishment. They are terrified that their loved ones will be killed by Israeli military campaigns like others have.I am disgusted that we are allowing the man who is responsible for ripping families apart and killing Israeli and Palestinian civilians to be given a platform before Congress to try and win support and funding for his indiscriminate bombing campaign.Netanyahu’s record of fascist and genocidal behavior is not new. His initial work to prop up Hamas is responsible for widespread destabilization in Palestine. He has presided over the detainment of Palestinians without due process, the illegal expansion of settlements in the West Bank, and the practice of “mowing the lawn”, indiscriminately murdering dozens of Palestinians in horrifying military onslaughts. He has also worked to dismantle the national judiciary so he cannot be held accountable and aligned himself with far-right actors such as Itamar Ben-Gvir who have called for mass displacement of Palestinians.In Israel, thousands of people are protesting against Netanyahu’s handling of the war, which is further putting hostages held in Gaza at risk. They are calling for a ceasefire and negotiations between Israel and Hamas to protect the safety of innocent civilians in Israel and Gaza. On Tuesday, thousands of people will protest outside the Capitol, calling for an immediate and lasting ceasefire and release of the hostages. The majority of American people and people around the world support this.There is a moral outrage in the American conscience that is not being fully expressed in Congress. Netanyahu’s presence and his joint address are directly undermining the will of the overwhelming majority of Americans who want peace. Instead of joining this collective push, most members of Congress are more focused on institutional norms and their neoliberal approach to foreign policy.Our system is broken if our leaders choose to ignore the will of the people. We should all be outraged about the murder of children, whether at home or abroad. We should all be yelling in the halls of Congress until our leaders have no choice but to listen.We need a permanent ceasefire and release of the hostages. We need a world where people understand that criticism of a state or a leader does not make you antisemitic. We need a paradigm shift on how we approach the issue of Israel and Palestine. It’s time to re-evaluate where we stand as a democracy and a society and re-examine our alignment and support for Netanyahu and his genocidal government because it is outrageous. For hundreds of thousands of innocent civilians, and for our democracy as a whole, the future depends on it.

      Jamaal Bowman is the United States representative for New York’s 16th congressional district since 2021 More

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      in US Politics

      American rule of law is vanishing at the tips of Trump-appointed judges’ pens | Moira Donegan

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      Donald Trump stole thousands of classified documents when he left the White House in 2021, according to prosecutors, and shoved them in unsecured areas around the tacky Florida golf club where he lives. He kept them in basements, bathrooms and ballrooms; they were often unlocked, accessible to anyone who happened to wander by, as dozens or hundreds of people do, every day, at Mar-a-Lago. Trump refused to return the documents when asked; he also lied about what he had.On at least one occasion in 2021, he was recorded showing off one of the classified documents to a visitor, apparently for the sake of his own aggrandizement. “It is like highly confidential. Secret,” Trump said to the man, who was not authorized to see the information. “See, as president, I could have declassified it. Now, I can’t, but this is still a secret.”Aileen Cannon, a US district court judge in Florida whom Donald Trump appointed during his last year in office, has done everything in her power to make sure Trump is never held accountable for the theft of the documents. Since the special counsel Jack Smith’s case – widely considered to be the most legally airtight of the several criminal prosecutions against the former president – was formally assigned to Cannon in June 2023, she has often acted as if she was a member of the defense team; denying routine motions from the prosecutors, antagonizing Smith and his team personally, and dragging on the proceedings in endless rounds of briefings and delays, all surely meant to postpone the case until after Trump retakes the White House.On Monday, she dismissed the case entirely, throwing out all the document-related charges against Trump. Her purported reasoning? That special counsels such as Jack Smith are unconstitutional. Smith signaled that he plans to appeal the decision.Cannon’s ruling flies in the face of decades of precedent, going back to the Watergate era, wherein courts, including the US supreme court, have repeatedly reaffirmed the constitutionality of special counsels and their appointments. But although Cannon wears a robe, she is not interested in the law, which is a mere pretext for her bald effort to advance and protect Trump’s interests. She is not a judge any more than the man who works at the mall every December is Santa Claus. She has the trappings and the power, but none of the expertise, none of the obligations and none of the shame.Cannon’s dismissal of the Trump documents case was predictable: the prosecution, widely considered to be doomed, came at the end of months of strategic moves on her part meant to provide Trump maximum leeway to message publicly about the case, and minimum threat to his electoral process. When Trump lied about the FBI raid on his home, saying that it was a plot on his life orchestrated by the Biden administration, Smith, fearing violence and public misperception, asked for a gag order. Both the sensitivity of the case and the egregious danger posed by Trump’s conduct should have made it an easy call; but Cannon denied it, allowing Trump to continue lying about the raid.At one point during preliminary proceedings, Cannon outright refused to let prosecutors see the documents that had been seized from Mar-a-Lago, a move that prompted a reversal and rare rebuke from the appeals court above her, Atlanta’s 11th circuit. That 11th circuit warning seems to have prompted the first instance in which another federal judge urged Cannon to recuse herself from the case. It would not be the last.Cannon’s single-handed nullification of the classified documents case demonstrates the core problem with what has been, until now, the dominant theory of how to hold Trump accountable for his crimes: with the law. Increasingly, it seems prosecutions in the federal courts are a futile exercise when it comes to the former president. And that’s because the courts are packed with Republican partisans, Trump appointees and personal Trump loyalists, and large numbers of other right-leaning judges who aim to use their seats to roll back the social progress of the past century, further Trump’s authoritarian agenda, and shield him permanently from consequence. To the extent that they are controlled by these actors, the federal courts will never provide a check to Trump’s power. They will only augment it.This reality was underscored on 1 July. The supreme court’s last decision of the term, Trump v United States, created, out of thin air, a vast and near-absolute immunity from criminal prosecution that the court’s conservative justices say applies to presidents – or, at least, applies to their favorite former president.That decision stemmed from another of Smith’s prosecutions, in the January 6 case; in his concurrence, Justice Clarence Thomas, writing alone, signaled that he thought that perhaps special counsels such as Smith might not be legal after all. It was less like a real, considered legal position than like a set of instructions for Cannon: throw the documents case out on these grounds. Her argument mirrors Thomas’s; she took her marching orders straight from the top.The 11th circuit is likely to reverse Cannon’s dismissal, and it’s possible that Smith will get a chance to re-file his charges – possibly in Washington, closer to the site of the original illegal conduct, which will have the benefit of permanently removing his case from Cannon’s court. But the case will not be heard before the election, and so it may never be heard at all.Even prosecuting Trump might turn out to offer little more than a delay of the inevitable: the complicity of the courts in Trump’s criminality reveals an institutional rot that even locking him up would not solve. If the courts cannot hold the president accountable – or rather, if they choose to exempt one man from their authority, and instead bend themselves to his will – what, exactly, is the check on the presidency? How can a powerful criminal be held to account? Where does the rule of law apply, and where does it vanish?We have at least one answer: the rule of law vanishes at the tip of a Trump judge’s pen.

      Moira Donegan is a Guardian US columnist More

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      in US Politics

      Films, fashion, law,d politics: George and Amal Clooney’s growing global reach

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      It took a famous TV doctor to diagnose the patient. After two weeks of turmoil in the US Democratic party over President Biden’s re-election bid, it was ER’s Doug Ross, AKA George Clooney, who wrote up a devastating evaluation of the incumbent president.The 63-year-old actor was not in theatrical mode when he wrote a more-in-sorrow letter published by the New York Times last week that called on Biden to withdraw from the presidential race that the White House reportedly begged him not to submit, coming three weeks after Clooney helped raise $30m for the Biden-Harris ticket at a lavish Hollywood fundraiser.But Clooney’s bedside manner was impeccable: “I love Joe Biden. As a senator. As a vice-president and as president. I consider him a friend, and I believe in him,” he wrote. “But the one battle he cannot win is the fight against time. None of us can.”Clooney was speaking for ­himself – and for a large swathe of liberal-leaning Hollywood donors angry at what they see as White House deception over the apparent decline of Biden’s health. Clooney said the man at the fundraiser “was the same man we all witnessed” in his debate performance two weeks later.In the current spirit of panic and recrimination, with a White House press corps turning every Biden appearance into a test of competence, Democrat money bundlers, including co-chair of Biden’s re-election campaign and movie producer Jeffrey Katzenberg, are under suspicion of helping to cover up Biden’s apparent health issues.Clooney’s letter has put the Ocean’s Eleven actor out of political harm’s way. The Democratic party may not be so lucky. Democrats, says James Carville, the Clinton strategist who last week called for a blitz primary to select a new candidate, “are hellbent on a mission to force the American people to do something they don’t want to do – to vote for Joe Biden”.“George has come out, [former house speaker] Nancy Pelosi has come out – I don’t know what else people can do,” Carville told the Observer. “Other than a few people in Congress, everybody thinks this is a terrible idea [for Biden to run]. But you’re up against a guy who doesn’t want to leave, and that’s just where we are.”View image in fullscreenGeorge Clooney is not the only Clooney making waves on a global stage. Last month his wife Amal Clooney was revealed to have played an important role in making the case for arrest warrants to be issued by the international criminal court (ICC) to Israeli prime minister Benjamin Netanyahu, defence minister Yoav Gallant and three top Hamas leaders.Biden called the ICC move “outrageous” and said that whatever the ICC prosecutor might imply, “there is no equivalence – none – between Israel and Hamas”. According to the Washington Post, George Clooney called Steve Ricchetti, counsellor to the US president, to protest about the administration’s willingness to impose sanctions in which his wife could get caught.This week, the Biden-Harris campaign attempted to blame Clooney’s letter on “pre-existing tensions” – hinting at the ICC dust-up. A Hollywood producer familiar with the couple told the Observer that the White House’s explanation for the letter was “bullshit” and the lawyer had been smeared because her work is on human rights irrespective of political division.“George has power in Hollywood. Amal doesn’t, except as George’s wife,” they added. “Her power is in the UK, at the Hague and on the pages of Vogue.”The lawyer has not commented on her husband’s political intervention, which may have come with Barack Obama’s tacit approval. But after 10 years together, George and Amal Clooney are seen as one of the most stable couples in Hollywood.View image in fullscreenThey’d met at the actor’s home in Lake Como, Italy, when a mutual friend brought her by. Clooney’s agent had also got wind of the ­introduction, the actor later revealed. “My agent said: ‘I met this woman who is coming to your house, who you’re going to marry.’ It really worked out that way.”“It felt like the most natural thing in the world,” Amal said. “I always hoped there could be love that was overwhelming and didn’t require any weighing or decision-making.”A safari in Kenya to see giraffes sealed the deal. In 2014 he proposed, they married in Venice and now have twins.The political instinct which had surfaced in Clooney films including Good Night, and Good Luck (2005) and The Ides of March (2011), soon took flight. By 2016 the couple were meeting with then-German chancellor Angela Merkel to talk refugee policy; that year they were at a UN refugee summit and soon after established the Clooney Foundation for Justice, which focuses on legal rights for those targeted by oppressive governments, tracking the money of human rights abusers and those profiting from war crimes.“We’re both inspired by the young people out there challenging injustice in their communities, a new generation that won’t accept the status quo,” the actor said in an awards acceptance speech two years ago.But Clooney’s intervention comes with potential costs. The Bidens, like the Clintons and Obamas, may see themselves as benefiting from rubbing shoulders with celebrities, but the intersection of entertainment and politics, and the money and ideologies that underpin it, is repulsive to many outside political-entertainment enclaves. In an echo of Trump, Biden now says the rising chorus against him is coming from members of “the elites”, despite the bad timing of first lady Dr Jill Biden appearing on the cover of the August US Vogue.The tradition of celebrity-political endorsements goes back to Frank Sinatra, who organised his friends, the Rat Pack, to campaign for John F Kennedy. Two decades later, disagreements over Ronald Reagan forced celebrities to choose where they belonged.“That’s where we are still,” explains veteran Democrat strategist Hank Sheinkopf. “Celebrities see themselves as an important part of the Democratic fundraising and thought-based operation, which a lot of Americans would not agree with.”View image in fullscreenSheinkopf says that the fight over Biden’s future is as much about the future of the Democratic party as it is about Biden’s health – and Clooney’s intervention will make Maga Republicans fight harder for candidate Trump.“Democrats are the party of the elites despite the fact that they see themselves as the party of the non-elites,” he says. Regardless of who is writing the cheques – Hollywood celebrities or a rightwing Texas industrialist – “what all elites want is a party that does what they want because they think it’s right”.“But that’s not who Joe Biden is. He represents the old pro-union, almost colour-blind left, but that’s not who the operators behind the scenes are,” he adds.Peter Bart, previous editor of the Hollywood trade bible Variety, wrote in a Deadline column that he had “great respect for Clooney’s decision” but it was also one that “will cost him”.He recalled other Hollywood stars who had mixed politics with entertainment, including Jane Fonda, Charlton Heston and John Wayne. “Apart from potential career damage, Clooney must confront donors who have spent millions at his ­urging to support a ticket he now renounces,” Bart, 91, warned.He recalled a conversation he’d had with Ronald Reagan about Nixon. “I want people to like me, even voters who vote against me,” Reagan told him. “Nixon doesn’t seem to care, but I’m still an actor.”Still, Clooney’s intervention has set him up for criticism. The progressive left and African-American voters, both voting blocs Biden is courting to firm up his support, slammed the actor for taking a position afforded him by being famous, white and male.Others have implied that perspectives are different from the window seat of a Gulfstream jet flying between homes in Los Angeles, England, France and Italy. (Besides being a successful actor, known for pranking friends, Clooney and partner Rande Gerber, husband of Cindy Crawford, split up to $1bn from the sale of their tequila brand Casamigos.)Clooney has been criticised, too, from the other side. Trump weighed in, saying Clooney “turned on Crooked Joe like the rats they both are”, and some have questioned why Clooney, and Hollywood more broadly, waited until after the debate to disclose what they had witnessed at the fundraiser.Still, the New York Times letter establishes the Kentucky-born actor as a modern-day Warren Beatty, the actor who made his political beliefs part of his public image. Beatty never ran for office and quipped it would be “more like running for crucifixion”, nor has Clooney, allowing both to ride over the humdrum day-to-day of retail politics.“George’s op-ed was provocative, well done, but voters don’t want this anyway: 73% of the voting public say they want something different,” says Carville. “They’re not asking for anything difficult – just a different nominee. We’re in a crisis.” More

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      in Elections

      Trump plans to block hearings in January 6 case before 2024 election

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      Donald Trump is expected to launch a new legal battle to suppress any damaging evidence from his 2020 election-subversion case from becoming public before the 2024 election, preparing to shut down the potency of any “mini-trials” where high-profile officials could testify against him.The plans come after the US supreme court last week in its ruling that broadly conferred immunity on former presidents opened the door for the US district judge Tanya Chutkan to hold evidentiary hearings – potentially with witnesses – to determine what acts in the indictment can survive.In the coming months, Trump’s lawyers are expected to argue that the judge can decide whether the conduct is immune based on legal arguments alone, negating the need for witnesses or multiple evidentiary hearings, the people said.If prosecutors with the special counsel Jack Smith press for witnesses such as former vice-president Mike Pence or White House officials to testify, Trump’s lawyers are expected to launch a flurry of executive privilege and other measures to block their appearances, the people said.The plans, which have not been previously reported, are aimed at having the triple effect of burying damaging testimony, making it harder for prosecutors to overcome the presumptive immunity for official acts, and injecting new delay into the case through protracted legal fights.Trump has already been enormously successful in delaying his criminal cases, including by succeeding in having the supreme court from taking the immunity appeal in the 2020 election subversion case in Washington, which was frozen while the court considered the matter.The delay strategy thus far has been aimed at pushing the cases until after the November election, in the hope that Trump would be re-elected and then appoint as attorney general a loyalist who would drop the charges.But now, even if Trump loses, his lawyers have coalesced on a legal strategy that could take months to resolve depending on how prosecutors choose to approach evidentiary hearings, adding to additional months of anticipated appeals over what Chutkan determines are official acts.A Trump spokesperson declined to comment on the legal strategy but claimed in a statement: “The entire January 6th case has always been just a desperate, un-constitutional attempt by the Biden Crime Family and their weaponized Department of Justice to interfere with the 2024 Presidential Election. The only thing imploding faster than the Biden campaign is Deranged Jack Smith’s partisan hoaxes.”View image in fullscreenTrump’s lawyers are not expected to make any moves until the start of August, the people said, when the case is finally returned to the jurisdiction of Chutkan after the conclusion of the supreme court’s 25-day waiting period and a further week for the judgement to formally be sent down.Once Chutkan regains control of the case, lawyers for Trump and for the special counsel have suggested privately that they think she will quickly rule on a number of motions that were briefed before the case was frozen when Trump filed his immunity appeal with the supreme court.That could include Trump’s pending motion to compel more discovery materials from prosecutors. If Chutkan grants the motion, Trump’s lawyers would insist on time to review the new materials before they started sorting through what acts in the indictment were immune, the people said.In the supreme court’s ruling on immunity, the justices laid out three categories for protection: core presidential functions that carry absolute immunity, official acts of the presidency that carry presumptive immunity, and unofficial acts that carry no immunity.Trump’s lawyers are expected to argue the maximalist position that they considered all of the charged conduct was Trump acting in his official capacity as president and therefore presumptively immune – and incumbent on prosecutors to prove otherwise, the people said.And Trump’s lawyers are expected to suggest that even though the supreme court contemplated evidentiary hearings to sort through the conduct, they are not necessary, and any disputes can be resolved purely on legal arguments, the people said.In doing so, Trump will try to foreclose witness testimony that could be politically damaging because it would cause evidence about his efforts to subvert the 2020 election that has polled poorly to be suppressed, and legally damaging because it could cause Chutkan to rule against Trump.Trump’s lawyers have privately suggested they expect at least some evidentiary hearings to take place, but they are also intent on challenging testimony from people like former vice president Mike Pence and other high-profile White House officials.For instance, if prosecutors try to call Pence or his chief of staff Marc Short to testify about meetings where Trump discussed stopping the January 6 certification, Trump would try to block that testimony by asserting executive privilege, and having Pence assert the speech or debate clause protection.Trump’s lawyers would argue to Chutkan that any privilege rulings during the investigation that forced them to testify to the grand jury were not binding and the factual record needed to be decided afresh.Meanwhile, witnesses such as former Trump lawyer John Eastman or former Trump campaign official Mike Roman would almost certainly be precluded from testifying because they have valid fifth amendment concerns of self-incrimination, as they have been separately charged with conspiring to overturn the 2020 election results in Fulton county, Georgia. More

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      in US Politics

      Making US public schools display the Ten Commandments isn’t harmless or neutral | Judith Levine

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      I was 10 in 1962, when the supreme court ruled, in Engel v Vitale, that the officially sanctioned recitation of prayer in public schools violated the constitution’s first amendment, which prohibits the establishment of a state religion.Before that, my school day started with the Pledge of Allegiance, followed by an appeal to God. We rose and pushed our chairs under our desks. Then we stood erect, gazed at the flag sticking out at an angle above the blackboard, and placed our right hands over our hearts. After the pledge, we bowed our heads and said a prayer composed by the New York state board of regents, which held authority over the schools: “Almighty God, we acknowledge our dependence upon Thee, and we beg thy blessings upon us, our parents, our teachers and our country.”As far as I could tell, none of this presented a problem for my classmates, almost every one of them Italian, Greek, or Irish Catholic. Many kids clasped their hands during the prayer.But as the only Jew in the class and the daughter of militantly atheist socialists to boot, saying these words every day was no simple exercise.To my parents, both the pledge and the prayer constituted authoritarian brainwashing. They had reason to suspect oaths of allegiance. Under the anticommunist regime of Senator Joe McCarthy, my father, a high school teacher, was required to sign a loyalty oath disavowing membership in the Communist party. He refused, and, like other government employees on the left, resigned rather than be fired.Although the Pledge of Allegiance contained no such explicit ideology, in 1954 Congress added the words “under God” to the pledge, a rebuke to godless communism. My parents weren’t thrilled by this conflation of patriotism and theism. But even if the US deserved fealty – and my mom and dad were not convinced it did – they objected to children being trained to give it by rote.It was the prayer that really riled them, though. Its authors called it “non-denominational”, but that did not distract the supreme court, or my parents, from the law’s intent: “to further religious beliefs”, said the justices – a clear breach of the separation of church and state. “In this country, it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government,” they wrote.I’d been attending civil rights and Ban the Bomb demonstrations since infancy. I was an unswerving non-believer as far back as I could remember. I was proud to be different, because nonconformity meant rejecting lies and standing up for what was right.Still, a kid wants to fit in. It was hard enough being Jewish. Hurtful to endure casual antisemitism (“I hate Jews,” an erstwhile friend announced one day, out of the blue). Uncomfortable to be left alone with the teacher and the one Protestant girl on Wednesday afternoons, when the Catholic kids were excused for “catechism”.It was dicey being an atheist. In third grade, I was consumed by terror after my three best friends convinced me that if I didn’t start believing in God I would end up in hell, which they described in ghastly detail. Anti-communism also threatened my family’s security – I kept that part of me a secret.Mom and Dad assured me that the law allowed me to remain silent or leave the room during the prayer, and they’d support my doing so even if it were illegal. I wanted to. But didn’t they understand that either act would only call attention to my apostasy?I was destined to betray something or someone – America, God, the truth, my family. Or myself. But what elementary school child knows who that is? What child should be compelled to figure it out?Jeff Landry, the Republican governor of Louisiana, recently signed a law requiring that the Ten Commandments be displayed in every classroom. “If you want to respect the rule of law,” he said, “you’ve got to start from the original lawgiver, which was Moses.”It was a nod to the “Judeo” in the “Judeo-Christian values” the Christian right is forever invoking – never mind that some people are neither Jews nor Christians, but Hindus, Muslims, Buddhists, or none of the above. The Republican state representative Dodie Horton insisted that the law “doesn’t preach a certain religion”, but merely “shows what a moral code we all should live by is”.These statements recall New York’s statement on moral and spiritual training in the schools, in which the “non-denominational” prayer was published three-quarters of a century ago. “We believe that this statement will be subscribed to by all men and women of good will,” the officials wrote, “and we call upon all of them to aid in giving life to our program.”Civil libertarians are challenging the Louisiana law. Its supporters are keen for the challenge, betting that the justices who have begun removing bricks from the constitutional wall of church-state separation will demolish the whole thing this time. Republican politicians in Texas have already indicated they plan to follow Louisiana’s lead.Government-mandated religion is patently unconstitutional. It reproduces the religious coercion that Europeans came to this continent to escape. It is no boon to children’s spiritual or civic education. Rather, it is harmful to children – or some children, as it was to me. And legally and morally, even one is too many.
      Judith Levine is a Brooklyn journalist and essayist, a contributing writer to the Intercept and the author of five books More

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      The Alito flag scandal and the supreme court’s ethics problem – podcast

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      Reports surfaced a few weeks ago that the supreme court justice Samuel Alito had flown an upside-down US flag outside his home days after insurrectionists flew similar flags when they stormed the Capitol on 6 January 2021. Alito has blamed his wife, saying he wanted her to take down the flag down after a dispute with neighbours.
      Democrats want Alito to recuse himself from any supreme court case involving 6 January, but he has refused to do so. Jonathan Freedland speaks to Amanda Marcotte of Salon about whether this latest scandal is proof that the supreme court is incapable of being unbiased

      How to listen to podcasts: everything you need to know More