Saturday, July 16, 2022
Anyone who thinks it should be an easy call for the Justice Department to turn a blind eye to Trump’s conduct hasn’t been paying attention.
Not so long ago, I was squeamish — nervous about the consequences, immediate and long-term, of having any administration prosecute its predecessor and chief political rival.
Prosecuting Trump threatened to further divide an already polarized nation; a conviction, even if secured, would be deemed illegitimate by a substantial portion of the population. If acquitted, Trump could be emboldened and empowered, a martyr to a seeming Democratic vendetta.
And whatever the outcome, the fateful step of bringing charges against a former president based on his conduct in office could unleash a dangerous cycle of tit-for-tat political prosecutions and revenge prosecutions. This is the stuff of banana republics, not the American system of justice.
I was also doubtful that Attorney General Merrick Garland would ultimately determine that the building blocks of a successful criminal case had been assembled — or, if they were, that bringing the case was in the interest of justice.
Prosecutors, after all, must be confident of their ability to prove their case beyond a reasonable doubt. Applying the precise elements of the criminal law to the conduct of a president who would argue that he was acting in the exercise of his official duties would introduce complicated questions of constitutional law
But my squeamishness and doubts have yielded — if not to the absolute conviction that Trump should be prosecuted, then to the increasing belief that charges are warranted, and that failing to bring them would be more damaging to the nation than turning a blind eye to his effort to subvert democracy and prevent the peaceful transfer of power.
What changed my mind? The evidence. The facts amassed by the House select committee are damning, morally and legally. To understand their weight and import, think back to the second impeachment trial and wonder: What if we knew then what we know now?
We know now that Trump’s exhortation to come to Washington on Jan. 6, 2021 — “Be there, will be wild” — was merely the desperate culmination of his frustrated attempts to forestall the vote-counting by other means.
We know now that Trump was secretly plotting all along to urge his supporters to march on the Capitol that day — that this was no off-the-cuff, ad-libbed exhortation but a premeditated, closely held plan.
We know now that officials across the administration, including White House Chief of Staff Mark Meadows and Director of National Intelligence John Ratcliffe, feared violence erupting on Jan. 6. “Things might get real, real bad on Jan. 6,” White House aide Cassidy Hutchinson said Meadows warned.
We know now that Trump wanted to join the mob in marching on the Capitol — that this was his plan all along; that his lawyers believed this would be “legally a terrible idea for us,” according to Hutchinson; and that he was enraged when he was prevented from following through.
We know now that when the rioters breached the Capitol, Trump was unperturbed. “He doesn’t want to do anything, Pat,” Meadows told White House counsel Pat Cipollone, according to Hutchinson. We know now that the claims of Trump’s impeachment lawyers that he, “like the rest of the country, was horrified at the violence,” were false.
We know now that Trump was similarly unfazed by the chants to “hang Mike Pence” — in fact, that he thought Pence deserved that fate for resisting his pressure not to certify the electoral college vote. We know now that the assertion by Trump impeachment lawyer Michael van der Veen that “at no point was the president informed the vice president was in any danger” was also untrue.
What criminal statutes does all this conduct violate? Try 18 U.S.C. Section 1512(c), which applies to anyone who “corruptly … obstructs, influences, or impedes any official proceeding, or attempts to do so.” Try 18 U.S.C. Section 371 which prohibits conspiracy “to defraud the United States”; such defrauding includes efforts to obstruct “the lawful functions of any department of Government.”
Is it in the interests of justice — and is it in the broader interests of the nation — to charge Trump with a crime? The Justice Department’s “Principles of Federal Prosecution” offer some guidance here. Two sentences in particular stand out:
“If a person … is reasonably believed to have engaged in criminal activity at an earlier time, this should be considered in determining whether to commence or recommend federal prosecution.”
“The fact that the accused occupied a position of trust or responsibility which he/she violated in committing the offense, might weigh in favor of prosecution.”
There is no greater position of trust or responsibility than the presidency, and no one who so flagrantly and repeatedly abused that trust more than Trump.
If and when Garland confronts the agonizing choice of whether to prosecute a former president, that position — and that history — should be top of mind.
Friday, July 15, 2022
When the Supreme Court overturned Roe v. Wade, it did more than just supercharge the assault on the right to have an abortion. It also opened up a corresponding attack on the right to travel.
That attack is a straightforward consequence of giving states the power to ban abortion. An abortion ban in Ohio, for example, does not actually end abortion. It simply pushes it underground or, for those who have the means, out of state. This, in fact, is what happened with a 10-year-old rape victim, who was recently taken out of state to obtain an abortion after she was impregnated as a result of the assault.
It is important to say that the Supreme Court has recognized a right to travel between states on multiple occasions in cases stretching back to the 19th century.
In Crandall v. State of Nevada, decided in the late 1860s, the court invalidated a Nevada law that imposed a one-dollar tax “upon every person leaving the State by any railroad, stage coach, or other vehicle engaged or employed in the business of transporting passengers for hire.” Americans, wrote Justice Samuel Miller in his majority opinion, have a right to movement that is “in its nature independent of the will of any State over whose soil he must pass in the exercise of it.”
The court affirmed this right a second time in Williams v. Fears in 1900. “Undoubtedly,” wrote Chief Justice Melville Fuller, “the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from and through the territory of any State is a right secured by the Fourteenth Amendment and by other provisions of the Constitution.”
More recently, in Saenz v. Roe in 1999, a majority of the court recognized that, as Justice William Brennan put it in 1969, “the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.”
There is nothing in the Supreme Court’s reasoning in Dobbs v. Jackson Women’s Health that would explicitly threaten the right to travel between states. In his concurrence with the majority’s ruling, Justice Brett Kavanaugh even says that in his view a state may not “bar a resident of that state from traveling to another state to obtain an abortion.”
But that’s exactly where some Republican-led states want to take the law.
Missouri lawmakers have introduced a “bounty” bill similar to the one now in operation in Texas, which would allow private citizens to sue anyone who helps a resident obtain an abortion out of state. Another bill would apply Missouri’s laws to abortions that occur in other states.
According to The Washington Post, an anti-abortion organization led by Republican state lawmakers has been exploring “model legislation that would restrict people from crossing state lines for abortions.”
“Just because you jump across a state line doesn’t mean your home state doesn’t have jurisdiction,” Peter Breen, vice president of the Thomas More Society, told The Post. “It’s not a free abortion card when you drive across the state line.”
And in Washington, congressional Republicans have rejected an effort to affirm the right to travel. . . . . There are few, if any, modern precedents for laws that limit the right of Americans to travel between states. To the extent that there is a history here, it lies in the legal conflicts over both fugitive slaves and free Blacks in the decades before the Civil War. . . . . Slave states, she writes, enacted increasingly punitive restrictions “that prohibited free blacks from traveling into slave jurisdictions.”
On the other side, slaveholders sought to use the legal system to restrict the movement of enslaved Americans out of the South. If the northern state governments would not recognize the existence of slave property, then federal courts would.
The result was a world in which Black Americans were deprived of freedom of movement. This was true even after the Civil War when, in the wake of Reconstruction, “redeemed” southern states put limits on the right of Black Americans to use public transportation and other forms of transit.
[T]he landmark case Plessy v. Ferguson in 1896 — which affirmed Jim Crow segregation — was “fought over equal access to the technologies of intrastate railway travel.” In his famous lone dissent, Justice John Marshall Harlan reminded the court that “‘personal liberty’ as it has been well said, ‘consists in the power of locomotion, of changing station, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint.’”
There is no direct parallel between the travel rights of women, girls and others who can give birth under anti-abortion laws and the travel rights of Black Americans under various forms of legalized unfreedom. But there is an echo of a question that relates to both situations: What happens to the rights of citizens when their bodies become property under the law?
And make no mistake: When a state claims the right to limit your travel on account of your body — when it claims one of the most fundamental aspects of your personal liberty in order to take control of your reproductive health — then that state has rendered you little more than another form of property.
Tuesday, July 12, 2022
When Russia occupied Bucha, a suburb of Kyiv, in February, most residents fled. But a baker named Matviy stayed to help his neighbours. (The names of the disappeared and their families have been changed for their protection.) On March 18th Russian soldiers burst into his home and took him away at gunpoint, says his sister Natalia: “We have not heard from him since.” Ukraine’s overwhelmed police, prosecutors and human-rights groups have been unable to help.
Bucha is the tip of the iceberg. Thousands of Ukrainians have been abducted from Russian-occupied areas, including activists, journalists and humanitarian workers. Journalists Serhey Tsyhipa and Oleh Baturin were seized on March 12th while reporting on atrocities committed by Russian forces. “They were taken to an unknown place with bags on their heads,” says Anastasia, Mr Tsyhipa’s step-daughter. Mr Tsyhipa eventually appeared on Russian state tv looking thin and spouting Kremlin propaganda.
“The Russians are abducting people to silence dissent,” says Nadia Dobriansk of Zmina, a Ukrainian human-rights group. Torture has been widely documented. Mykola Panchenko, an activist who had attended protests in occupied territory, was kidnapped while buying groceries. His wife Svitlana says masked men brought him to their house hours later and searched for weapons, then took him away again. The Russians released Mr Panchenko a month later with broken ribs. Other victims have turned up dead.
Russia has deployed such terror tactics for decades. After it annexed Crimea in 2014, Crimean Tatar activists and community leaders disappeared in droves. During Russia’s two wars in Chechnya in the 1990s, disappearances were so widespread that Human Rights Watch said they amounted to a crime against humanity.
“There are over ten thousand that we know are missing, but this is certainly an underestimate,” says Katya Osadcha, a Ukrainian tv presenter who set up a Telegram group called Search for the Missing. Police submitted over 9,000 missing-person reports from February 24th to May 24th . . . . The government claims hundreds of thousands of its citizens have been deported to Russia. Soldiers at filtration camps often confiscate people’s documents. “If we don’t have information, we can’t find people,” says Ms Osadcha.
Families like Anastasia’s are trying everything to get loved ones back. “The state has not done anything,” she says. She has applied to a un working group on enforced disappearances and is submitting a case to the European Court of Human Rights. “We do not know when Matviy will come back, but we will wait and he will return. There is no other way.”
We cannot forget what is happening or cease strong support of Ukraine.
Monday, July 11, 2022
A movement that seeks to compel Americans to live according to a stringent moral code may be most vulnerable when it succeeds.
For more than half a century, anti-abortion activists, most of whom were or are either conservative Catholics or evangelical Protestants, lobbied state legislatures and Congress, held prayer vigils and mass demonstrations, and recruited a dedicated regiment of lawyers and judges to advance their cause. “This is a great day for preborn children and their mothers,” declared the National Right to Life Committee in June after the Supreme Court overturned Roe v. Wade, hailing “the work of millions” of citizens who carried its message “into every nook, cranny and corner of America for decades.”
Now that movement has a new and more difficult task: to press its allies in state governments and the courts to enact and enforce new abortion restrictions and to persuade the public to accept the criminalization of what a majority of Americans have long said should be legal.
A century ago, another mass movement, also driven by religious zeal, faced a similar challenge — and utterly failed to overcome it. In 1919, the amendment to prohibit the sale and manufacture of alcohol became part of the Constitution.Millions of Americans in the “dry army” celebrated what they believed was the culmination of a crusade that burned to outlaw what was one of the largest and most ubiquitous consumer industries in the land. The evangelist Billy Sunday exulted: “The reign of tears is over. … Men will walk upright now, women will smile, and the children will laugh. Hell will be forever for rent.”
Dry factions bloomed in both major parties, although Republicans were more solidly united behind the idea than Democrats. By the time Congress passed the 18th amendment, prohibition was the law in nearly half the states; 17 had done the deed by popular vote.
Yet the vigor of enforcement seldom matched the movement’s crusading fervor. Kansas passed a dry law in 1880, but illegal saloons known as “blind pigs” operated rather freely in the cities of the state. When the temperance activist Carry A. Nation took to raiding such places, hatchet in hand, she was seeking to embarrass government officials for shirking their duties; they sent her to jail for destroying private property.
She and fellow evangelical Protestants were the soul of the movement, but most Americans of other faiths or none at all regarded prohibition as an assault on their personal liberty. Catholic immigrants who had settled one Iowa county defied the law, egged on by their local priest, who let them produce moonshine in the basement of his church. In 1913, Congress enacted a ban on shipping alcoholic beverages into dry states, but the authorities could do little to enforce it.Once the dry movement got the Constitution on its side, resistance to its mission intensified. Canadian distilleries shipped thousands of cases of whisky across the border. Al Capone and other urban gangsters became fabulously wealthy forcing speakeasies to sell only the alcohol the mob provided. Applauded by many Catholic and Jewish voters, mayors in New York and San Francisco denounced the law — and refused to help effectively enforce it.
Underfinanced, understaffed and often unmotivated police forces could not prevent people from violating the law, . . . .
The prohibitionists thus lost their reputation as a movement of compassionate idealists and got saddled with a new one: allies of a state bureaucracy that lashed out, clumsily, at anyone who did not behave like a devout rural Protestant, a group that included Catholics and Jews, as well as wealthy city dwellers.
With the onset of the Great Depression, the resistance to Prohibition emerged as a political juggernaut. . . . . In 1932, they rallied to the presidential campaign of Franklin D. Roosevelt, who vowed to help speed the end of national prohibition. A year later, Roosevelt happily announced the ratification of the amendment repealing what Herbert Hoover, the president he had defeated in a landslide, had called “the great experiment.”
Of course, the political challenge of stopping abortions will differ from the challenge of abolishing the traffic in alcohol. . . . .Yet, in some ways, the anti-abortion movement after the Supreme Court’s Dobbs decision is actually weaker than was its moralist precursor when prohibition became the law of the land. Nearly 60 percent of Americans disapprove of the Dobbs decision. And while many conservative Christians of all denominations think abortion is sinful, they no longer command public opinion as did evangelicals a little over a century ago. . . . . And young women, vital foot soldiers in the bygone dry army, now overwhelmingly oppose the judicial and legislative effort to police their wombs.
Republicans like Mike Pence may vow to outlaw abortion everywhere, but to enforce a national ban would require a very different citizenry than the one that inhabits 21st-century America. . . . . Stories of teenagers forced to bear children that resulted from rape and of health workers jailed for helping desperate poor women end their pregnancies could soon make the anti-abortion movement seem more sadistic than virtuous.
Today, if the history of prohibition is any guide, the public will quickly turn hostile when activists with decent motives elect officials (or appoint judges) who carry out indecent and unenforceable assaults on individual freedom. In the end, most Americans will rebel against authorities who decree what they can do with their own bodies.
Sunday, July 10, 2022
In one of its major decisions this term, the Supreme Court struck down a 109-year-old New York law that said that only people who could demonstrate a compelling need to carry a gun could do so. Simply living in a dangerous neighborhood and wanting to protect oneself from crime wasn’t good enough, New York said — a judgment the court deemed unconstitutional, as it announced “an individual’s right to carry a handgun for self-defense outside the home.”
Whatever one’s view of the best way to interpret the Second Amendment, we unfortunately know what effects this ruling will have in the relatively few states that still restrict the carrying of weapons (such as New York, California, New Jersey and Massachusetts). It will cause a spike in violent crime, lead to more guns being stolen, and result in the police solving fewer violent-crime cases. We know that’s true because research has established that that’s what has happened in other states that have liberalized their gun-carry laws.
In the last five years, more than a dozen empirical studies have concluded that right-to-carry laws increase violent crime. The latest found that, of the 47 largest cities in the United States, those in the states adopting right-to-carry laws experienced a roughly 30 percent increase in firearm-related violent crime (that is, homicide, aggravated assault and robbery). This city-based research — conducted by me, Stanford researchers Matthew Bondy and Samuel Cai, and Philip J. Cook of Duke — buttresses earlier findings, rooted in state-level data, of increased violent crime.
As of 1987, 16 states and the District of Columbia banned concealed carry, and 26 states heavily restricted such carrying of weapons. (Even Texas largely banned the carrying of firearms outside the home from 1870 to 1995.) But the gun lobby has campaigned to expand the “right to carry” to every state in the union, and the resulting staggered adoption by many states of these laws aids researchers in the effort to ascertain their impact.
Our study drew on data from the Federal Bureau of Investigation’s Uniform Crime Reports and Supplementary Homicide Reports, from 1979 to 2019. As a first step in the study, we determined that the passage of right to carry (RTC) laws wasn’t a reaction to a rise in crimes in the cities we examined.
In some cases, we were surprised by what we did not find. Astonishingly, as more states embraced the right to carry, the rate at which Americans used a gun in response to a criminal threat didn’t budge. People confronted by criminals used guns 0.9 percent of the time, according to the National Crime Victimization Survey for 1992-2001 as well as for 2007-2011. Let that sink in: As the proportion of the U.S. population covered by RTC laws expanded to 67 percent across the nation and as the number of permits rose across almost all states, there was no increase in the likelihood that a “good guy with a gun” would defend themselves against an assailant.
[O]ur paper looked closely at the impact of RTC laws on levels of overall violent crime, as well as, separately, firearm and non-firearm crime. Whether one looked at all violent crime or specifically at homicide, robbery and aggravated assault, there was one consistent finding (although not every result was statistically significant): Overall crime always rose, and firearm-related crime rose even more significantly. . . . . the widespread carrying of guns further incentivizes criminals to make sure they are packing. The latter fact likely explains why firearm robbery showed the single highest rate of growth of any crime — a highly statistically significant increase of roughly a third.
Our paper highlighted two important costs of gun carrying that have largely been overlooked. First, RTC laws lead to a dramatic 35 percent increase in gun thefts. Police reports from around the country attribute the bulk of this theft to guns left in often unlocked cars. Our research found that the level of gun carrying in RTC states during the period we studied transferred, via theft, about 100,000 guns from “good guys” to criminals each year. With the new Supreme Court decision, that figure will grow. This free path to gun ownership is a great bonanza for criminals.
The second novel contribution of our paper is the discovery that police clearance rates for violent crimes drop as RTC policies take effect. Remarkably, we found that in the wake of RTC adoption, the ability of police to close the books on cases fell by a statistically significant 13 percent. . . . Right-to-carry laws lead to more criminals being out on the streets because they have not been identified and apprehended.
Of course, rising crime is not the only consequence of creating a situation in which many people on the street are armed. The likelihood of police shootings — both justified and unjustified — rises. When police show up at an active crime scene and find guns drawn, it is not often clear who are the miscreants, leading to tragic errors.
The myth that letting more law-abiding citizens carry firearms increases safety and decreases crime has proved stubbornly hard to dislodge, although it is refuted by many studies. Because of that myth, gun sales and gun carrying are sure to increase in previously restrictive states, But their citizens will largely be wasting money buying guns (and lugging them around), as violent crime around them increases.
[W]ith Bruen the Supreme Court has taken an important crime-fighting tool away from the few remaining states that still had restrictive gun-carry laws. It’s unarguable that the court has made the already-difficult job of fighting crime that much harder.
When will the majority of Americans rise up and say "no more" to minority rule?
The breadth of the January 6th hearings will tell Americans a lot about the substantive threats to our democracy, if we are willing to listen. I hope Christians, in particular, will heed the substantive threat Christian nationalism played in priming insurrectionists to storm the Capitol with crosses, Christian flags and banners that proclaimed “Jesus Saves”.
As a pastor, I fear this movement is not only a danger to our democracy, it is a threat to Christianity itself.
Christian nationalism is not Christian. In fact, it is idolatry, violates God’s commandments, breaches freedom of religion, and claims innocent lives. Eighteen months later, despite what certain Members of Congress may claim, the Christian nationalist movement that helped fuel the Capitol Hill insurrection continues to kill. The white supremacist who slaughtered ten Black people at a grocery store in Buffalo, New York, is merely the latest to be driven to mass murder based on his belief in the “great replacement theory” which has strong roots in Christian nationalism.
Christian nationalism leads Christians in the wrong direction, separating us from God’s vision of a world where all are treated with dignity. It is a heretical violation of the two greatest commandments in the Christian faith: “You shall love the Lord your God with all your heart, and with all your soul, and with all your mind.” and “You shall love your neighbor as yourself.” (Matthew 22:37-39 NRSV)
Christian nationalism is a form of idolatry, placing one so-called ethnic group, race and nationality ahead of God’s love for all of us. Scripture and the real Christian vision is bigger than the interests of our class, religious, national or ethnic group.
Instead, Christian nationalists advocate for laws that denigrate and roll back the rights of people who are not white, Christian, heterosexual or cisgender. They dare to cloak cruel policies in the guise of religious freedom when in reality these laws have nothing to do with religion or freedom. These laws codify hatred and deny God’s love for all humanity. And to be clear, these laws also violate the founding American principle of religious freedom itself for millions of Americans whose religious values, like Christianity, teach them to value each and every human being.
Christian nationalism refuses to take a clear-eyed view of history so that our children can learn from our mistakes and build a nation where all can flourish in all of our God-given diversity. It ignores the full story of the systematic exclusion of people of color, Native Americans, women, LGBTQ people and religious minorities from the benefits of our so-called democracy and our call in Matthew 22. Its propaganda leads to electing racist leaders to “make America great again” and claiming elections are stolen when voters of color turn out in record numbers to vote their values.
In the face of this clear and consistent warping of Christian faith, messages and values, it’s no wonder many are tempted to throw out faith altogether.
For people of all faiths and no faith we have an opportunity to dig deeper into our values, affirm the human dignity of each person and build a multi-faith, multiracial democracy where everyone has the freedom to thrive no matter where they were born, what they look like or how they worship.
More Christians must step up. We must do more than just watch the January 6th hearings aghast. We cannot allow our faith to continue to be hijacked by white supremacists covered in religious language. For the sake of our faith and our democracy, we must denounce Christian nationalism and reclaim a faith that values and affirms the human dignity of all people. Including our own.