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Trump and the GOP Dig Up “Zombie Laws”

Donald Trump may have won the popular vote in 2024, but he did not win a majority of all voters.  Thus, despite claims to the contrary, he and Republicans have no mandate and Project 2025 remains highly unpopular.   Faced with the reality that there are likely not enough votes in Congress to pass the most reactionary aspects of the MAGA/Project 2025 agenda, Trump and his extremist advisors and sycophants realize they will need an alternate route to inflict on a majority of Americans policies they clearly do not want.  Hence, the effort to resurrect so-called "zombie laws" - laws still in the statute books but unenforced in some cases for many years or struck down by U.S. Supreme Court rulings but subject to reactivation if the extremist on the Court reverse past rulings - to achieve what may be impossible legislatively.   At the federal level, the Comstock Act from the 1870's is particularly troubling.  Meanwhile, here in Virginia, a reversal of the ruling in Lawrence v. Texas and/or the Obergefell ruling, would reactivate the state's sodomy law and bans on same sex marriage.  The latter would conflict with federal legislation protecting interracial and same sex marriages, but lengthy litigation might be involved to stop state enforcement by zealots in the Youngkin regime. A piece at Vanity Fair looks at this effort to resuscitate zombie laws:

During Donald Trump’s first term, courts provided a necessary check on his ambitions by blocking many of his deregulation efforts, on issues ranging from the environment to immigration, along with his initial version of a travel ban targeting Muslim-majority countries. Even the Supreme Court, which has empowered Trump in a number of ways, prevented him from dismantling DACA.

This time around, to avoid such pesky checks and balances, Trump and his allies have revisited US history and found some truly heinous old laws to advance their right-wing agenda. These “zombie laws,” as they’re called, are provisions that haven’t been enforced or invoked for decades but are somehow still on the books. Yet they could be resurrected in a radical fashion if and when Project 2025 becomes America’s reality.

Arguably the worst among them is the Comstock Act of 1873, a product of the Victorian-era moral panic named after anti-vice activist Anthony Comstock. It was designed to restrict the distribution of “obscenities” at the time, like pornography, contraceptives, and even some medical textbooks. Despite its anachronous nature, the Comstock Act has never been repealed. And earlier this year, during oral arguments for FDA v. Alliance for Hippocratic Medicine—which centered on the agency’s approval of mifepristone, an abortion medication often ordered by mail—justices Clarence Thomas and Samuel Alito mused on the idea of bringing the law back to life.

Of course, the Comstock Act is some “obscure law,” whose enforcement, The American Prospect notes, essentially stopped in the 1930s, after federal courts clarified that it could only be applied when someone was mailing an item or drug specifically intended to be used illegally for an abortion. The law had been largely dormant for decades, until Trump appointed Amarillo, Texas, district judge and anti-choice zealot Matthew Kacsmaryk, who used it to try to take the abortion pill off the market. “We don’t need a federal ban when we have Comstock on the books,” as Jonathan F. Mitchell, who has worked as a lawyer for Trump, told The New York Times.

[M]ore to Mitchell’s point is the fact that the Comstock Act might allow Trump to circumvent congressional approval. “Abortion opponents are turning to laws like the Comstock Act,” as legal scholar Mary Ziegler told me in an email, “because they doubt that even a Republican Congress would pass a sweeping ban that voters today would never accept.” The GOP could presumably shut down the mailing of abortion pills without incurring the poor optics of a federal ban; it could also claim that it brought the issue “back to the states,” even while using a federal law to negate states’ laws. Still, the larger question remains: Why was Comstock even allowed to stay on the books in the first place? And why didn’t Democrats ever make a concerted effort to repeal it earlier?

Aside from the Comstock Act, the other zombie law in contention is the Alien and Sedition Acts of 1798. The acts, passed by a Congress in the control of Alexander Hamilton’s Federalist Party, tightened restrictions on anti-government speech and gave the government power over immigrants deemed threats to the country. One of them, the Alien Enemies Act—which allows the federal government to relocate foreign nationals from countries deemed hostile to the United States during times of war—has only been invoked on three occasions. It was used by James Madison against the British during the War of 1812; by Woodrow Wilson during World War I to send more than 6,000 people, many of whom were German, to internment camps; and by Franklin D. Roosevelt during World War II, which led to the internment of Japanese citizens.

But now Republicans are angling to use it again, to create a legal framework for the mass internment and deportation of immigrants—perhaps the biggest promise of Trump’s campaign. The president-elect has repeatedly said that the residence of some 11 million undocumented immigrants in America constitutes a foreign “invasion”—incidentally a precondition for the law’s enforcement. The problem, though, is that Republicans need to prove that America is genuinely at war—which it isn’t, rendering their theory completely faulty. Nevertheless, the end result of Trump’s immigration platform might look a lot like the Dwight Eisenhower administration’s 1954 “Operation Wetback,” in which law enforcement used military-style tactics to forcibly remove hundreds of thousands of Mexican immigrants from the US.

Zombie laws may just be theoretical legal frameworks on a piece of paper. But they are also products of some of America’s most objectionable policymaking. Remember: America was the home of Jim Crow laws—which were the inspiration for the Nuremberg Laws. The Comstock Act and Alien and Sedition Acts were used during a time when American legislators were motivated by entrenched racism and sexism, writing immoral laws that masqueraded as moral.

The reason Trumpworld needs to use these laws is because its ideas are profoundly antiquated. Sure, Trump narrowly won this election. But no matter how mad Americans may be about inflation, no one is signing up for a return to the Victorian era.

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Trump to Russia's Rescue

We may never know with certainty whether Donald Trump is a Russian asset or merely a hostage to "kompromat,: but one big winner in the 2024 presidential election was Vladimir Putin.  Trump panders to Putin and, I suspect, wants to rule like Putin.  Indeed, with media outlets and tech moguls all capitulating to Trump and congressional Republicans following his dictates, America may be on its way towards a Russia style rule by Trump and his billionaire oligarchs being placed in important positions regardless of competence or relevant experience. Now, with Russia's goals for influence and military bases in the Middle East in ruins with the collapse of the al-Assad dictatorship in Syria and the war in Ukraine grinding on, Putin must be ecstatic that Trump will be returning to the White House with the intent to weaken NATO, disrupt America's foreign trade and move the country towards isolationism reminiscent of  how America in directly contributed to the advent of WWII.  A piece in The Atlantic looks at how Trump is coming to Putin's rescue.  Here are highlights:

Dictatorships seem stable and almost invulnerable, until the day they fall. Syrian President Bashar al-Assad’s regime crumbled in days in the face of an offensive led by Hayat Tahrir al-Sham, or HTS, a group that the United States considers a terrorist organization. But the Syrian civil war is, for now, mostly over. Hundreds of thousands are dead.

I wrote more than a decade ago in favor of Western intervention in Syria, back when the butcher’s bill was still in the tens of thousands, and finally gave up when Assad repeatedly used chemical weapons and got away with it. I predicted at the time that President Barack Obama’s decision against military action would undermine America’s position in the Middle East, embolden Iran, and give Russia its first major outpost in the region. Some of my worst fears, sadly, came true, while bodies piled up in the Syrian rubble for the next decade.

I would not even begin to predict Syria’s future, but I can identify one of the biggest losers (besides Assad, of course) now that this nightmare is over: Vladimir Putin.

That is, unless Donald Trump rides to his rescue.

Syria was a symbol of Russia’s desire to return to superpower status, a perch in the Middle East that even Putin’s Soviet predecessors never achieved. It’s hard to overestimate the value of such a position—close to the West’s energy resources and important waterways—to any Russian government, past or present.

As Russia’s geopolitical position in Syria has collapsed, Putin’s prestige and credibility have taken a serious hit. Putin has long prided himself on being an ally who never cuts and runs. . . . . “In the Middle East, Putin has often contrasted the fecklessness of American presidents with his steadfast support to those he views as Russia’s loyal partners. He has marketed this consistency as a selling point as to why he is a better mediator for regional disputes.”

Putin, however, helped seal Assad’s fate when Russia invaded Ukraine, dividing Russian attention and capabilities so badly that when HTS and other rebels launched their offensives, Moscow was unable to offer much help. Now the world has seen Assad chased from his own palace while Putin did nothing, a spectacle that casts doubt both on Putin’s power and on the value of his word.

Putin is also in other jams of his own making. The Russian economy is suffering from sanctions and from the costs of his military adventure in Ukraine. On the ground in Ukraine, his troops are advancing slowly through a meat grinder in a war that was supposed to be over in a week. North Koreans are fighting alongside Russians, and a senior Russian military officer was blown up in the streets of Moscow. The sprawling Russian Federation now looks like a banana republic that needs assistance from Pyongyang’s hermit kingdom and can’t even keep one of its own generals safe in the national capital.

Putin’s very bad year could be a very good opportunity for the West and for the besieged Ukrainians, if the Americans and their allies continue to strain Russia’s military on the battlefield and Russia’s economy in the global marketplace—in other words, if someone other than Trump were about to become the leader of the free world.

Trump openly admires Putin, and has reportedly spoken with him multiple times since leaving the White House in 2021. He is unlikely to press the West’s advantage.

And what exactly would Trump do differently? During his campaign, Trump said he could end the war in a day. Now he says that the war is “a tough one; it’s a nasty one,” with people “being killed at levels that nobody’s ever seen.” (Fact check: People have been killed at such levels in many modern wars, but it’s to Trump’s credit if he’s concerned.) Trump claims to want a peace deal; the problem is that in practice, any “peace deal” means letting Putin keep his imperial acquisitions while he gears up for renewed fighting.

Trump has named retired General Keith Kellogg as his special envoy for Ukraine and Russia. Kellogg (who accepts the risible Russian line that the war was spurred in part by Moscow’s fears that Ukraine would join NATO) has argued for continuing to arm Ukraine if Russia won’t agree to a cease-fire. This might seem a hard line, but it’s pure theater: Putin knows this game, and he will simply repeat his Crimea playbook from 2014 and 2015, agreeing to peace negotiations while engaging in chicanery and cease-fire violations behind the scenes. The weapons to Ukraine will dry up, the West will look away in shame, and Putin’s tanks will roll again as soon as he’s caught his breath.

I hope I’m wrong and that wiser heads prevail on Trump to take advantage of Putin’s misfortunes. . . . . More likely, Trump will go on with his campaign of retribution at home while the Russians do as they please.

Events in Syria have opened a historic opportunity, but sometimes the man and the moment do not meet.

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Trump and The Great Capitulation

Hitler's and the Nazi regime's rise to power in Germany was aided by a number of factors not the least of which was the decision of Germany's leading industrialists and some news outlets to go a long with the Nazi regime to increase their wealth and/or to avoid repercussions with Hitler.  This capitulation ultimately led to the end of Germany's democracy, many millions of deaths in WWII and Germany's ruin.  This blog often laments the failure of Americans to learn from history and now we are seeing tech titans, owners of news outlets and others capitulating to Trump much as their German counterparts in 1930's Germany did to Hitler.   These surrenders range from individuals  trooping to Mar-a-Lag to kiss Trump's ring and making donations to his inaugural fund to ABC News settling a flimsy defamation case brought by Trump.  Meanwhile, Trump is threatening other news outlets in an effort to cow them into submission and turn them into either propaganda outlets or insure they cease negative coverage of Trump and his unfit nominees.   A column in the New York Times looks at this disturbing parallel with 80 some years ago.  Here are excepts (be very afraid for the future, especially if one belongs to groups targeted by Trump and his MAGA/white Christian nationalist allies.):

At a press conference at Mar-a-Lago on Monday, Donald Trump described recent visits from Tim Cook, C.E.O. of Apple, Sergey Brin, a co-founder of Google, and other tech barons. “In the first term, everyone was fighting me,” he said. “In this term, everyone wants to be my friend.” For once, he wasn’t exaggerating.

Since Trump won re-election — this time with the popular vote — many of the most influential people in America seem to have lost any will to stand up to him as he goes about transforming America into the sort of authoritarian oligarchy he admires. Call it the Great Capitulation.

Following Jan. 6, Mark Zuckerberg, the Facebook co-founder, suspended Trump’s account. But last month at Mar-a-Lago, The Wall Street Journal reported, Zuckerberg stood, hand on heart, as “the club played a rendition of the national anthem sung by imprisoned” Jan. 6 defendants. (It’s not clear if Zuckerberg knew what he was listening to.) He’s pledged a million-dollar donation to Trump’s inauguration, as did the OpenAI C.E.O. Sam Altman and Jeff Bezos’ company Amazon, which will also stream the inauguration on its video platform.

After Time magazine declared Trump “Person of the Year,” the publication’s owner, the Salesforce C.E.O. Marc Benioff, wrote on X, “This marks a time of great promise for our nation.” The owner of The L.A. Times, the billionaire pharmaceutical and biomedical entrepreneur Patrick Soon-Shiong, killed an editorial criticizing Trump’s cabinet picks and urging the Senate not to allow recess appointments.

Most shocking of all, last week ABC News, which is owned by the Walt Disney Company, made the craven decision to settle a flimsy defamation case brought by Trump.

As you may remember, a jury last year found Trump civilly liable for sexually abusing the writer E. Jean Carroll. In a memorandum, the judge in the case explained that while a jury didn’t find that Trump had raped Carroll, it was operating under New York criminal law, which defines rape solely as “vaginal penetration by a penis.” It did find that he’d forcibly penetrated her with his fingers.

“The finding that Ms. Carroll failed to prove that she was ‘raped’ within the meaning of the New York Penal Law does not mean that she failed to prove that Mr. Trump ‘raped’ her as many people commonly understand the word ‘rape,’” wrote the judge. “Indeed, as the evidence at trial recounted below makes clear, the jury found that Mr. Trump in fact did exactly that.”

The ABC News anchor George Stephanopoulos appeared to be using this broader definition when, in March, he said on-air that a jury had found Trump “liable for rape.” Trump, who regularly threatens, and sometimes files, defamation cases against his perceived enemies in the press, sued. And though his case seemed absurdly weak, ABC News decided to settle in exchange for a $15 million donation to Trump’s future presidential library or museum, $1 million in legal fees and a public statement of regret from Stephanopoulos and the network.

Displays of submission aren’t limited to tech and media. Christopher Wray, the head of the F.B.I., agreed to step aside before the end of his 10-year term rather than make Trump fire him.

Different people have different reasons for falling in line. Some may simply lack the stomach for a fight or feel, not unreasonably, that it’s futile. Our tech overlords, however liberal they once appeared, seem to welcome the new order. Many hated wokeness, resented the demands of newly uppity employees and chafed at attempts by Joe Biden’s administration to regulate crypto and A.I., two industries with the potential to cause deep and lasting social harm. There are C.E.O.s who got where they are by riding the zeitgeist; they can pivot easily from mouthing platitudes about racial equity to slapping on a red MAGA hat.

Some Democrats appear to think that they might steer DOGE in a productive direction and that, regardless, they’ll get credit for bipartisanship.

One of Kamala Harris’s pollsters, Politico reported, recently warned the Democratic National Committee leadership against pearl-clutching over Trump’s transgressions, including the wildly unfit characters he’s announced for his administration. The voters, she said, “don’t care about who he’s putting in cabinet positions.”

Collectively, all these elite decisions to bow to Trump make it feel like the air is going out of the old liberal order.

“The individual has the intrinsic moral right to live his life in a special and fulfilling way without subordinating to the universal collective,” Marc Andreessen, the software engineer and venture capitalist at the forefront of Silicon Valley’s rightward lurch, wrote on X last week. “Purveyors of abstract guilt must not steal that from you.” Even powerful people who didn’t vote in favor of this harsh new world can find their consolations in it.

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Kash Patel - A Dangerous Ideologue

As Donald Trump continues to roll out his nominees for cabinet positions and other critical governmental positions, two things define many of these nominees: (i) they are totally unqualified for the positions for which they have been tapped, and (ii) they are extreme ideologues who have sworn fealty Trump over all else. One can only hope that enough spineless Republicans will find themselves unable to hold their noses and cast votes for Trump's frightening nominees.  Among the most dangerous are Pete Hegseth, Tuli Gabbards, and Kash Patel, the latter being Trump's pick to head the FBI.  A long piece at Politico Magazine looks at Patel who is known for his dishonesty even among former Trump officials and his willingness to use the FBI to enact revenge against anyone Trump doesn't like, including federal prosecutors and members of the media. As FBI head, Patel would be reminiscent of J. Edgar Hoover who misused his office, except Patel would likely be worse and could wreak significant damage to the FBI and individual Americas.  Here are article excerpts:

Some key pieces appear to be snapping neatly into place for Donald Trump’s much-feared prosecutorial revenge tour as the year draws to a close.

Trump’s new nominee to lead the Justice Department, Pam Bondi, is a staunch loyalist who predicted last year that after Trump’s reelection, “the prosecutors will be prosecuted — the bad ones.”

And his plan to install Kash Patel as FBI director was made easier after Christopher Wray, himself a Trump appointee, . . . . has proven particularly controversial, since his principal qualification appears to be his sycophancy toward Trump. (A Trump transition spokesperson said, “Kash Patel has served in key national security positions throughout the government. He is beyond qualified to lead the FBI and will make a fantastic director.”)

Many observers, including former federal law enforcement officials, oppose Patel’s nomination on the grounds that he would likely use the FBI to pursue Trump’s political opponents and that he might substantially corrupt the culture and professionalism of the bureau. To some, Patel calls to mind the specter of J. Edgar Hoover, the infamous FBI director whose nearly 50-year stint running the agency until 1972 was marked by egregious abuses of power — including illegal surveillance, blackmail and the harassment of political dissidents.

Patel clearly lacks the qualifications, experience and temperament to lead the agency. But how worried should the American public really be about him at the helm of the FBI? . . . He will indeed face some constraints because of the culture and bureaucracy of the FBI. But they may not contain him. And he will have plenty of opportunity to damage the bureau and its work — and to use and abuse the FBI for political ends. His nomination poses a considerable and unjustifiable risk to the country.

On paper, there is no way to justify Patel’s ascension. He spent a few years as a federal prosecutor focused on national security and was an aide in Congress and the first Trump administration on intelligence and national security issues. Even setting aside the decidedly mixed and often controversial results of that work (more on that below), Patel has no experience managing anything remotely like the FBI’s sprawling bureaucracy — 35,000 employees, 55 field offices throughout the country and more than 60 offices overseas.

What he does have is years spent endorsing Trump’s conspiracy theories and railing against many of Trump’s perceived enemies in the “deep state” — often in deeply unserious appearances on Steve Bannon’s War Room podcast, on other conservative media outlets and on the campaign trail.

Those appearances — replete with comments from Patel that would disqualify him from consideration for the post in pretty much any other era — have since become a central part of the case against him.

He has frequently denigrated the employees he hopes to lead — perhaps most infamously, when he said he would “shut down the FBI Hoover Building on day one and reopen [it] the next day as a museum of the deep state” and “take the 7,000 employees that work in that building and send them across America to chase down criminals.” He has accused the FBI and Justice Department of “politicizing targets and manufacturing crimes” and questioned “how Americans can have any faith in this FBI anymore.” . . . . he describes the FBI as “an existential threat to our republican form of government.”

The fear that Patel would use the FBI to go after Trump’s political opponents is also well-founded given Patel’s own public statements. Perhaps most notably, he has threatened to “go out and find the conspirators, not just in government but in the media … who lied about American citizens, who helped Joe Biden rig presidential elections.” He added, “Whether it’s criminally or civilly, we’ll figure that out. But yeah, we’re putting you all on notice.”

Patel has also previously publicly zeroed in on some of Trump’s most prominent antagonists. Among others, he has suggested that Attorney General Merrick Garland, Manhattan DA Alvin Bragg and Anthony Fauci should be investigated or potentially arrested. So far as I can tell from the rhetoric, the legal theories underlying Patel’s claims are at best highly dubious, if not transparently ridiculous.

Despite these sorts of guardrails, the risks of Patel’s nomination remain real.

For one thing — and it is no small thing — many of Patel’s former colleagues in the first Trump administration describe him as dishonest and unsuited for a top law enforcement post.

“He’s absolutely unqualified for this job. He’s untrustworthy,” Charles Kupperman, Trump’s deputy national security adviser and Patel’s former supervisor, recently told The Wall Street Journal. “It’s an absolute disgrace to American citizens to even consider an individual of this nature,” he said.

During Trump’s first term, former Attorney General William Barr blocked Patel’s appointment by Trump to serve as deputy FBI director. “Patel had virtually no experience that would qualify him to serve at the highest level of the world’s preeminent law enforcement agency,” Barr wrote in his book. Likewise, when Trump considered installing Patel as the deputy CIA director during his first term, Gina Haspel, who was then leading the agency, reportedly threatened to resign. Another former Trump DOJ official who worked with Patel recently described the prospect of him running the bureau as “terrifying.” Again, these aren’t liberal activists: They are Trump officials.

There is also opportunity for abuse even in ostensibly straightforward areas, notwithstanding the legal and bureaucratic constraints on the FBI director.

It would be an extraordinary — but not necessarily shocking — move, but Patel could waive the DIOG requirements and order investigations despite the requirements and procedures laid out in bureau guidelines. Patel could also recruit politically sympathetic FBI agents and prosecutors to help on particularly controversial or dubious cases. The process would likely be easier with the help of Bondi at the Justice Department.

Patel would also be empowered to punish agents who worked on cases that he disfavors on political grounds — like the Trump prosecutions and cases targeting far-right extremists.

It is also possible to start dubious investigations and to then try to trip people up based on alleged process crimes — like lying to the FBI — even if there was no underlying misconduct to begin with. Here too, we saw troubling precursors during the first Trump administration. . . .

There’s one other, perhaps unlikely, episode from the first Trump administration to draw on when thinking about Patel: the family separation saga.

Trump officials at the time tried to implement an illegal and immoral crackdown at the southern border, and they were aided by federal agents and prosecutors. The effort ultimately came to a halt after bureaucratic chaos, public blowback and a ruling from a federal judge, but in the relatively short period of time during which the policy was in place, the government managed to separate over 5,000 children from their families, inflicting incalculable harm on them in the process. Hundreds of them have still not been reunited.

There is a grim but essential lesson here as the Senate weighs Patel’s nomination to lead America’s top law enforcement agency: Malicious and powerful government officials can cause incredible harm — even if they are incompetent, and even if they are eventually stopped.

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