insurrection – COMMUNIST PARTY OF MAINE

_{^{Former President Donald Trump flanked by attorney John Lauro, left, and D. John Sauer, center right, speaks to reporters and members of the media at the Waldorf Astoria hotel after attending a hearing of the D.C. Circuit Court of Appeals at the federal courthouse on Tuesday, Jan. 09, 2024, in Washington, D.C. | Photo by Jabin Botsford/The Washington Post via Getty Images}}

Trump’s assault on democracy’s essential institutions has always been open and notorious. Examples abound—and they are laced with lies. If you were an attorney committed to defending democracy, could you defend this man?

_{Reposted from Common Dreams}

“Thus was democracy finally interred…. [I]t was all done quite legally, though accompanied by terror. Parliament turned over its constitutional authority to [the dictator] and thereby committed suicide, though its body lingered on in an embalmed state to the very end…, serving as a sounding board for some of [the dictator’s] thunderous pronunciations, its members hand-picked by the [dictator’s party], for there were no more real elections….” —William L. Shirer, The Rise and Fall of the Third Reich (1959)

In his book, Shirer then quoted historian Alan Bullock, whose observation decades ago frames the lawyer’s dilemma in representing Donald Trump today:

“‘The street gangs… had seized control of the resources of a great modern State, the gutter had come to power….’ But —as Hitler never ceased to boast—‘legally,’—by an overwhelming vote of Parliament. The Germans had no one to blame but themselves.”

The Constitutional Right to Representation

In the United States, anyone charged with a crime is entitled to a defense. But representing someone seeking to undermine the U.S. Constitution by destroying its institutional foundations and the rule of law is an entirely different matter. That’s because every lawyer swears an oath to support the Constitution.

Trump’s assault on democracy’s essential institutions has always been open and notorious. Examples abound—and they are laced with lies.

The Big Lie(s)

More than 60 federal and state courts ruled that Trump lost the 2020 election. But Trump claims falsely that he won. Yielding no ground to facts or reality, he and his allies claim that—unless he wins—every election is “rigged” against him and no one should credit the outcome, including the upcoming contest on November 5, 2024.

Likewise, a jury of Trump’s peers convicted him of 34 felonies. But Trump asserts that the entire civil and criminal justice system is out to get him. As for January 6, he labels the convicted insurrectionists who attacked the U.S. Capitol “patriots” and “martyrs,” and promises to pardon them if he recaptures the White House.

Trump’s congressional sycophants have fallen in line behind him in adopting his false, revisionist history of the insurrection and his assault on the criminal justice system. But as the attack on the U.S. Capitol occurred, Republicans in Congress—including then-Majority Leader Mitch McConnell (R-Ky.)—were clear about what was happening and who was responsible. A week after the riot, McConnell went to the Senate floor and said, “The mob was fed lies. They were provoked by the president and other powerful people.”

After voting to acquit Trump in his second impeachment, McConnell said:

There’s no question, none, that President Trump is practically and morally responsible for provoking the events of the day…

The people who stormed this building believed they were acting on the wishes and instructions of their president, and having that belief was a foreseeable consequence of the growing crescendo of false statements, conspiracy theories and reckless hyperbole which the defeated president kept shouting into the largest megaphone on planet Earth.

He did not do his job. He didn’t take steps so federal law could be faithfully executed and order restored.

No. Instead, according to public reports, he watched television happily—happily—as the chaos unfolded. Even after it was clear to any reasonable observer that Vice President Pence was in serious danger.

Today McConnell supports Trump’s re-election bid.

History Might Not Repeat Itself, But Sometimes It Rhymes

Trump has followed the lead of his most heinous predecessor.

Trump peppers his rants with bigotry, fear, and terror. He refers to immigrants as “vermin” who are “poisoning the blood” of the United States. He says, falsely, that they are criminals from “prisons,” “mental institutions,” and “insane asylums.” Trump warns Americans to resist immigration or “you won’t have a country anymore.”

In Mein Kampf, Hitler wrote that he “was repelled by the conglomeration of races…repelled by this whole mixture of Czechs, Poles, Hungarians, Ruthenians, Serbs, and Croats, and everywhere the eternal mushroom of humanity – Jews and more Jews… [His] hatred grew for the foreign mixture of peoples….” (Shirer, p. 27) And he spoke repeatedly about the need to “increase and preserve the species and the race.” (Shirer, p. 86)

Pledging that, if elected, he will be “dictator for a day,” Trump has vowed publicly to “root out” his political opponents. And he promises to stack the federal government with cronies who will never disagree with him.

Hitler said repeatedly that he would “know neither rest nor peace until the November criminals [who, he falsely claimed, had ‘stabbed Germany in the back’ with the onerous Versailles Treaty of 1918] had been overthrown.” He banished or executed those who crossed him. (Schirer, p. 70)

During his first term in office, Trump stacked his administration and the courts with allies, including a federal judge in Florida who presides—and delays—one of the three remaining criminal cases against him. That judge—and many of his other appointees—were and are manifestly unqualified for their jobs.

Hitler co-opted the judiciary and then established his own special courts. He alone became the law. (Shirer, 268-274)

The Washington Post reported in February 2024:

Just before the former president lost the 2020 election to President Biden, Trump issued an executive order designed to gut civil service job protections for workers across the government. It would have paved the way for the workers to be replaced with others, including political partisans, subject to termination at will—a move the Republican president backed because he felt nonpartisan bureaucrats were hampering many of his policies. Trump has promised to reinstate the directive, which Biden quickly revoked after his inauguration. It created a new federal employment category, Schedule F, that would make federal jobs vulnerable to partisan political whims by weakening guardrails meant to ensure a nonpartisan bureaucracy.

Initial estimates that Trump’s edict would apply to more than 50,000 government employees were far too low.

Hitler populated the government with his lackeys. Before becoming chancellor, he vowed that “when the National Socialist movement is victorious in this struggle, then there will be a National Socialist Court of Justice too. Then the November 1918 revolution will be avenged and heads will roll!” (Shirer, p. 141)

Trump understands the importance of symbols and branding. “MAGA” and related paraphernalia—hats, T-shirts, flags—are no accident.

Hitler likewise understood the power of symbols and used the swastika as a unifying image.

Trump co-opted religious evangelicals, many of whom view him as the divine messenger for their cause.

Hitler exploited his country’s history to gain the support of its religious institutions. Then he assumed control over all of them.

Trump has persuaded many industrial magnates to support him because his policies will favor them economically, including a promise to reverse climate initiatives affecting the major oil companies in return for $1 billion in contributions to his current campaign.

Hitler cultivated industry leaders who supported his rise to power – until it was too late to stop his heinous acts that disserved even them.

Trump understands the power of lies, deception, and disinformation. He rode to the White House on the wings of his “birther” lie about President Barack Obama’s origins.

Hitler rode lies to power too: “[A]t a given sign it unleashes a veritable barrage of lies and slanders against whatever adversary seems most dangerous, until the nerves of the attacked persons break down… This is a tactic based on precise calculation of all human weaknesses, and its result will lead to success with almost mathematical certainty…” (Shirer p. 22-23)

Trump understands the power of fomenting fear and encouraging terror. January 6, 2021 made that abundantly clear.

One hundred years earlier, Hitler had discovered that power, writing: “I achieved an equal understanding of the importance of physical terror toward the individual and the masses… For while in the ranks of their supporters the victory achieved seems a triumph of the justice of their own cause, the defeated adversary in most cases despairs of the success of any further resistance.”

Trump has never won a majority of the popular vote for President.

Hitler topped out at 37 percent before an aging President Paul von Hindenburg gave him the chancellorship.

Trump uses television and social media to outline his views and to reveal—in advance—how he will proceed if he gains control of the government.

Hitler used Mein Kampf as a roadmap of his ambitions and his plans to fulfil them. Trump meets all of the criteria that one of Hitler’s professors listed in describing the future dictator: lacking “self-control and, to say the least, he was considered argumentative, autocratic, self-opinionated, and bad-tempered, and unable to submit to school discipline.”

The Lawyer’s Dilemma

So Adolf Hitler seeks your help in dismantling the foundational institutions of government and undermining popular support for democracy.

He offers you a big retainer and dangles the promise of a media spotlight for his outrageous positions.

Your assignment is simple: Do whatever it takes to help him achieve power—but all of the steps must be lawful. His objective—and yours if you accept—is the destruction of the U.S. Constitution and the demise of the rule of law.

Do you take the case?

_{Steven J. Harper is an attorney, adjunct professor at Northwestern University Law School, and author of several books, including Crossing Hoffa — A Teamster’s Story and The Lawyer Bubble — A Profession in Crisis. He has been a regular columnist for Moyers on Democracy, Dan Rather’s News & Guts, and The American Lawyer.}

_{^{Will Trump be able to stay on the ballot in 2024? | Scott Olson, Getty Images}}

_{Reposted from the Maine Beacon}

Momentous questions for the U.S. Supreme Court and momentous consequences for the country are likely now that the court has announced it will decide whether former president and current presidential candidate Donald Trump is eligible to appear on the Colorado ballot.

The court’s decision to consider the issue comes in the wake of Colorado’s highest court ruling that Trump had engaged in insurrection and therefore was barred from appearing on the state’s GOP primary ballot by Section 3 of the 14th Amendment to the U.S. Constitution. Maine’s secretary of state also barred Trump from the state’s primary ballot, and more than a dozen other states are considering similar moves.

The Conversation’s senior politics and democracy editor, Naomi Schalit, spoke with Notre Dame election law scholar Derek Muller about the Supreme Court’s decision to take the case, which will rest on the court’s interpretation of a post Civil War-era amendment aimed at keeping those who “engaged in insurrection or rebellion” from serving in political office.

***^{_{The U.S. Supreme Court. | Stefani Reynolds, Getty Images}}***

The Conversation: On a scale of 1 to 10, how big is this?

Muller: In terms of potential impact, it’s a 10. It is excluding a former president from appearing on the ballot for engaging in insurrection.

That’s monumental for several reasons. It’s the first major and material use of this provision of the Constitution since the Civil War. It’s the first time it has kept a presidential candidate off the ballot, much less a former one and the apparent front-runner for the Republican Party nomination.

But on the flip side, what are the odds of that actually happening? That’s more speculative. And so the number is probably less than 10. This was an extraordinary major decision from the Colorado Supreme Court. But you have to temper that by saying, well, there’s a chance it gets reversed, and then Trump appears on the ballot and this mostly goes away.

The Conversation: What are the risks here for the court? Legal scholar Michael W. McConnell at Stanford said in The Washington Post, “There is no way they can decide the case without having about half the country think they are being partisan hacks.”

Muller: This is a binary choice that either empowers the Republican candidate or prevents voters from choosing him. So when you have a choice in such stark, political and partisan terms, whatever the Supreme Court is doing is often going to be viewed through that lens by many voters.

I think it’s a reason why there will be as much effort as possible internally on the court to reach a consensus view to avoid that appearance of partisanship on the court, that appearance of division on the court. If there’s consensus, it’s harder for the public to sort of point the finger at one side or another.

That’s much easier said than done. The court decides questions with major political consequences all the time. But to decide the questions in the context of an upcoming election feels different.

The Conversation: The justices granted only Trump’s appeal to consider the case, not the Colorado Republican Party’s. Is this significant, and if so, how?

Muller: The Colorado Republican Party and the Trump campaign were on two different tracks in their appeals. When you grant both cases, you invite two sets of attorneys and parties to participate and add complexity. I think the decision to grant only Trump’s case is a decision to make this as streamlined a process as possible.

The Conversation: Will whatever decision the court makes put to rest the ballot access questions in all the other states?

Muller: There are a couple of very narrow grounds the court might rule on. For example, they might say, we’re not ready to hear this case because it’s only a primary, or Colorado so abused its own state procedures as to run afoul of federal constitutional rules. Those would be kind of rulings only applicable to the Colorado case or only applicable in the primaries.

There’s a chance the court does this, but my sense — not to speculate too much — is that’s going to be deeply unsatisfying for the court, knowing that if they delay in this case, another case is likely coming later in the summer where these questions will have to be addressed in August or September. That’s much closer to the general election. Those are months when the court is in recess, and they would have to come back from their summer vacation early. So my sense is that the court will try to resolve these on a comprehensive basis. They’ve scheduled oral argument on Feb. 8, 2024 so they want to move on as quickly as possible to put this to rest.

The Conversation: You submitted an amicus brief in the Colorado case for neither side. What was it you wanted to tell the court?

Muller: I raised two general points and then one specific to Colorado. The two general points are that I think states have the power to judge the qualifications of presidential candidates and keep them off the ballot. And states have done that over the years to say if you were born in Nicaragua, or you’re 27 years old, we’re going to keep you off the ballot.

But I also say states have no obligation to do that. You can look throughout history, going back to the 1890s, where ineligible candidates’ names have been printed and put on the ballot. And this isn’t a question of whether or not the state wants to do it — they have the flexibility to do it. So I wanted to set those two framing questions up so the court doesn’t veer too much in one direction or the other to say “states have no power” or “of course states have power regardless of what the legislature has asked them to do.”

The point specific to Colorado is I doubted there was jurisdiction in Colorado for the state Supreme Court to hear this case, but the court disagreed with me.

The Conversation: What could happen during the period between now and the court’s decision that could be consequential?

Muller: More states are going to consider these challenges as the ballot deadlines approach. And we know that there’s Super Tuesday the first Tuesday of March when a significant number of states hold presidential primaries. So I think there’s a lot of uncertainty in the next six weeks about which states might exclude him.

On top of that is voter uncertainty. Voters are making their decisions and weighing the trade-offs of who to vote for. Right now, this is a cloud hanging over the Trump campaign. It’s not just that he’s been declared ineligible in Colorado and Maine. It’s the question in other states for other voters: Am I wasting my vote, is this actually an ineligible candidate? Should I be voting for somebody else?

That’s not an enviable position for voters to be in — that they might cast their ballots only to find out later that they’re not going to be counted.

_{^{This article was first published by The Conversation.}}

_{Naomi Schalit is the Conversation’s senior politics and democracy editor.}