David K. Shipler's Blog, page 11

The Criminal Justice of Amy Coney Barrett, Part Two

 

By David K. Shipler 

                The newest Supreme Court Justice, Amy Coney Barrett, writes much better than most of her new colleagues, and she knows how to tell a story. In the area of criminal justice, including defendants’ and prisoners’ rights, she begins each opinion with a narrative vivid enough for a crime writer to treat as a synopsis for a novel. And her rulings, founded on clear legal argument, are hard to categorize along a liberal-conservative spectrum. She stands willing to decide against police, prosecutors, and trial judges when she sees the facts and the law demanding as much.

                That was her record during three years on the 7th Circuit Court of Appeals. But she was restricted by the precedents of earlier rulings by her circuit and the Supreme Court. In many cases, she wrote for unanimous three-judge panels that included two liberals who surely had significant influence over the shape of the opinion. The highest court’s culture with a conservative majority will be different. Its authority to reinterpret the law and the Constitution exceeds that of appeals courts. With such license, she could shift to the right in cases involving the Fourth Amendment, for example, where she has been fairly tough on law enforcement. On the other hand, as a supporter of the Second Amendment right to own firearms, she gives close scrutiny to police searches that turn up guns and to sentence enhancements for gun possession.

                Following are several of her most interesting opinions that were described more briefly in Part One:

                United States v. Watson—“The police received an anonymous 911 call from a 14-year-old who borrowed a stranger’s phone and reported seeing ‘boys’ ‘playing with guns’ by a ‘gray and greenish Charger’ in a nearby parking lot.” The caller said the “boys” were black. “A police officer then drove to the lot and blocked a car matching the caller’s description. The police found that a passenger in the car, David Watson, had a gun. He later conditionally pleaded guilty to possessing a firearm as a felon.”  Watson then moved to suppress the gun evidence as the fruit of an unconstitutional search.

                 Under the Supreme Court’s application of the Fourth Amendment dating from Terry v. Ohio in 1968, Barrett noted, “an officer cannot stop someone to investigate potential wrongdoing without reasonable suspicion that ‘criminal activity may be afoot.’” She also cited later cases spelling out factors justifying reasonable suspicion, including a particularized and objective basis for suspecting a certain individual of a specific crime. Reasonable suspicion is a lower bar than the “probable cause” required to get a search warrant from a judge. A warrantless search also requires urgency, in that a pedestrian or a driver could depart with evidence before a warrant could be issued.

In Watson’s case, the police claimed that blocking the car and doing the search were justified under those rules. Barrett quoted the first officer as describing the neighborhood as a heavy crime area and worrying that if there were “three or four guys displaying weapons, they might [be] about to shoot somebody.” A second officer said, “any time you have males with weapons, there’s always a sense of urgency ‘cause anything could happen.”

But Barrett found precedents derogating the reliability of anonymous tips in establishing reasonable suspicion. Furthermore, she declined to apply a Supreme Court precedent granting a 911 call considerable credibility because here, she observed, it came from a borrowed phone by a boy whose identity was unknown and could probably not be traced. Furthermore—the clincher—“his sighting of guns did not describe a likely emergency or crime—he reported gun possession, which is lawful.” Her panel suppressed the evidence and vacated the judgment.

 United States v. Vaccaro—“Milwaukee police officers Aaron Frantal and Matthew Tracy stopped [Travis] Vaccaro for running a red light. Officer Frantal testified that Vaccaro stopped his car and made a ‘very ferocious move’ by ‘bending at the waist.’ Vaccaro then leaned toward the passenger seat and ‘made another aggressive move with his entire top torso and both arms into the back seat of the vehicle.’ Officer Tracy added that he saw Vaccaro ‘double over bending at the waist’ and then reach toward the passenger side of the car. Officer Frantal testified that Vaccaro’s movements took under five seconds. Afraid that Vaccaro might be trying to ‘gain control of something from the back seat,’ Officer Frantal drew his gun and ordered Vaccaro out of his car. The officers immediately handcuffed Vaccaro, and Officer Frantal patted him down. Meanwhile, Officer Tracy asked Vaccaro questions about his movements.” Vaccaro said he had just been trying to take off his coat.

A driver’s “furtive movement” after a traffic stop is a standard police rationale for searching a vehicle, since it could mean an attempt to hide or retrieve a weapon. Although it could also mean that you’re reaching for your registration, courts usually accept it as satisfying the “reasonable suspicion” requirement.

Suspicions were heightened when the cops noticed a GPS monitor on Vaccaro’s ankle and he told them he was on supervision for “false imprisonment.” They believed they had a felon who might illegally have a weapon. Since he seemed in an “amped-up” state, they suspected that he was on drugs. So they locked him, still handcuffed, in the back of a squad car. But since his only known offense to that point was a traffic violation, they did not place him under arrest, which became a key issue in the outcome of his appeal.

Then they searched his car, and there is where the Fourth Amendment got muddy. One of the officers spotted a rifle case in the back seat under a coat—only after Vaccaro was safely locked in the squad car, with no access to any gun that might have been inside his own vehicle. They pulled the coat aside, opened the case, and found a rifle. Vaccaro was charged possessing a firearm as a felon and entered a conditional guilty plea, contesting the searches.

Barrett and her panel decided that the pat-down was justified by reasonable suspicion, although he had no weapon on him. The car search, she said, was “a closer call” but in the end, narrowly justified.

Barrett’s opinion cited a very thin rationale under Michigan precedent justifying a warrantless car search when officers fear that a suspect could gain immediate control of weapons. But could Vaccaro have gained control? He was detained in the back of the police car. The Supreme Court, in Arizona v. Gant, had ruled a search under such conditions unconstitutional. In that case, the suspect was under arrest. Vaccaro was not, so Barrett quoted a concurring opinion in Gant by her mentor, the late Justice Antonin Scalia, which carved out an exception to the Court’s rejection of officer-safety concerns when a suspect is handcuffed and locked in a squad car. “In the no‐arrest case,” Scalia wrote, “the possibility of access to weapons in the vehicle always exists, since the driver or passenger will be allowed to return to the vehicle when the interrogation is completed.” Such was Vaccaro’s status, Barrett found, and he lost his appeal.

United States v. Atwood—While James Atwood was awaiting sentence by Federal District Judge Colin S. Bruce for drug crimes, the judge continued a longtime practice of communicating ex parte with prosecutors in the U.S. Attorney’s Office, where he had worked for many years. A newspaper reported that while presiding over a criminal trial, he had emailed a paralegal in the office expressing “exasperation,” Judge Barrett wrote, “that the novice prosecutor’s weak cross-examination had turned the case ‘from a slam-dunk for the prosecution to about a 60-40 for the defendant.’ After learning of those emails, the Chief District Judge removed Judge Bruce from all cases involving the Office. [The removal ended September 1, 2019.] The Office then disclosed additional emails, which revealed that Judge Bruce had communicated ex parte with the Office over 100 times since taking the bench. . . . They often showed Judge Bruce cheering on Office employees and addressing them by nicknames.” At times, Barrett said, “Judge Bruce wrote to prosecutors in the Office to congratulate and thank them for persuading our court to affirm his decisions.”

 Barrett noted that none of Judge Bruce’s communications involved Atwood’s case, and that the 7th Circuit’s Judicial Council had found no decisions affected by his ex parte contacts. But the council reprimanded him for violating the Code of Conduct for United States Judges. Furthermore, she wrote for a unanimous panel, “The federal recusal statute requires a judge to recuse himself from ‘any proceeding in which his impartiality might reasonably be questioned.’” Citing case law, she examined the three factors to be considered: fairness to the litigants, the risk of injustice to other litigants in future cases, and “the risk of harm to the public’s confidence in the impartiality of the judiciary.” All three tests were met here, she and her colleagues found. “Judge Bruce compromised his appearance of impartiality,” she said, and ordered resentencing by a different judge. Bruce had given him 17 and a half years, which was reduced by another judge to 13 years in federal prison plus 5 years of supervised release.

It was a small victory for Atwood, a larger one for judicial ethics, and perhaps a signal of how seriously Barrett will take the “appearance of impartiality” as she considers whether to recuse herself from election cases that are arriving at the Supreme Court so soon after her highly politicized confirmation.

In the end, the appearance of impartiality by any judge can best be upheld by her ability and willingness to put her personal attitudes aside and to transcend, rather than reflect, the politics and social conflicts that are enflaming the country. Democrats have vilified Justice Barrett as a political pawn and a predictable ideologue. Perhaps they’ll turn out to be correct. But the best way for her to rebut the charge would be, quite simply, to prove them wrong.

The Criminal Justice of Amy Coney Barrett, Part One

 

By David K. Shipler 

             For all the close scrutiny of soon-to-be Supreme Court Justice Amy Coney Barrett’s writings on the hot-button issues of abortion rights, gun rights, and Obamacare, little attention has been paid to her rulings on the rights of criminal defendants and prisoners. She has issued opinions in thirty-four such cases and signed on to other rulings in her three years on the 7th Circuit Court of Appeals, a rather thin record, yet one demonstrating a willingness to rule both for and against police, prosecutors, and trial judges.

At times she conveys compassion for the convicted and a robust regard for the Fourth Amendment’s restrictions on the police power to search. She is occasionally willing to strip officers of their “qualified immunity” from lawsuits. But she can also adopt extremely narrow interpretations of legal language to uphold questionable convictions and heavy sentences.

           In the general area of criminal justice and related civil suits, she has issued only five dissents—four going against inmates and defendants and one arguing that a non-violent felon should be allowed to own firearms, which current federal law prohibits. In another dissent, in Sims v. Hyatte, she opposed the exoneration of a man whose attempted murder conviction relied entirely on his identification by the victim, who turned out to have been hypnotized before his trial testimony—a fact not disclosed to the defense. Two of the three judges overturned the conviction, and the man was released after twenty-six years in jail.

Otherwise, she has written for unanimous three-judge panels, putting her in the mainstream of her court. It is fair to say that most of her opinions in criminal cases have been slam dunks, not even close calls given the facts and the precedents. Some appeals that reached her court seemed like stretches by defense attorneys; others exposed such egregious behavior by authorities that a contrary ruling would have shocked the conscience. (More detailed descriptions of key cases will appear next week in the second part.)

She has ruled several times against qualified immunity, which precludes civil lawsuits against  police officers and other government employees unless their actions would be clearly understood by a reasonable official to violate established constitutional or legal norms. The doctrine, which was invented by the Supreme Court, has created a Catch-22: If the use of force, even deadly force in certain situations, has not been deemed a violation in the past, then it cannot be argued that a reasonable officer would regard it as such now. Hence, police officers as individuals can rarely be sued successfully, as the country has learned during the Black Lives Matter movement’s efforts toward police reform.

Barrett has not addressed the concept itself, but has applied it for and against officers depending on the case’s specific issues. On the one hand, she dissented from a majority opinion in McCottrell v. White allowing two inmates to sue guards who wounded them by firing shotguns inside a prison cafeteria. On the other hand, in Rainsberger v. Bennershe cast aside qualified immunity, for an Indianapolis homicide detective who lied in an affidavit to get an arrest warrant; the charges were dropped, and the defendant sued. She also joined opinions rejecting immunity for a prison guard in Wisconsin (Howard v. Koeller)who retaliated against a jailhouse lawyer by falsely labeling him a snitch, and guards in an Illinois jail (Broadfield v. McGrath) who were sued for using excessive force against a suicidal prisoner. She ordered a new trial in another prisoner’s unsuccessful lawsuit (Walker v. Price) against guards he claimed had beaten him, because the court had denied his repeated requests to help him find a lawyer. She wrote sympathetically of the inmate’s unsuccessful struggle to represent himself before the jury by video link, given his “IQ  of 76 and a grade-school level of comprehension.”

She has both upheld and overturned tough sentences, usually with close readings of the law and the federal sentencing guidelines. But she also used fussy grammatical nitpicking about “the present-perfect tense” to dissent from United States v. Uriarte, a 12-3 opinion of the entire 7thCircuit applying the First Step Act, a new reduced-sentencing law, to a convict awaiting a revised sentence after his first was overturned.

In light of calls by Democrats to recuse herself from any election case that might reach the Supreme Court, it’s worth noting that Barrett ordered a reduced sentence because Judge Colin S. Bruce, a former federal prosecutor, had failed to recuse himself after having chummy, private conversations about other cases with prosecutors from his old office. (United States v. Atwood)

She also rejected a prison sentence that was lengthened based on an unproven assumption--that a man convicted of stealing guns had sold them to people he supposedly knew were prohibited from having firearms. “Nothing in the record suggests” that he knew the buyers’ legal status, she wrote for a unanimous three-judge panel.  “The court plainly crossed the line that separates permissible commonsense inference from impermissible speculation.” (United States v. Moody)

A man with both drugs and guns in his house was unduly given an enhanced sentence, she found in United States v. Briggs, for possessing a firearm “in connection with another felony offense,” as the federal sentencing guidelines provide. But “because the district court made essentially no factual findings connecting” the guns and the drug possession, she wrote for a unanimous court, the case was sent back down for resentencing.

                Barrett’s several opinions and comments on the constitutional right to be secure against government searches offer the tentative possibility that she might be willing to rescue the Fourth Amendment from near oblivion. Largely because of the war on drugs, the proliferation of warrantless searches of vehicles and frisks of pedestrians led Federal District Judge Paul L. Friedman to tell me a decade ago: “I don’t think that there’s much left of the Fourth Amendment in criminal law.” Since 9/11, digital surveillance rationalized by anti-terrorism policies has swept the country as well.

The amendment requires a warrant from a judge, backed by probable cause that evidence of a specific crime will be found in a particular place. But the courts have devised so many exceptions in allowing warrantless searches in so many situations, that “the right of the people to be secure in their persons, houses, papers, and effects,” in the amendment’s words, has been severely undermined.

            At her confirmation hearing, Barrett gave this significant response to Republican Senator Ben Sasse’s question about how the Fourth Amendment would deal with cell phones and other technology that didn’t exist when the Bill of Rights was ratified in 1791:

            “No, the Fourth Amendment, so the Constitution, one reason why it’s the longest lasting written constitution in the world is because it’s written at a level of generality that’s specific enough to protect rights, but general enough to be lasting so that when you’re talking about the constable banging at your door in 1791 as a search or seizure, now we can apply it, as the Court did in Carpenter versus the United States, to cell phones [requiring a warrant to get phone location records]. So the Fourth Amendment is a principle. It protects against unreasonable searches and seizures, but it doesn’t catalog the instances in which an unreasonable search or seizure could take place. So you take that principle and then you apply it to modern technology like cell phones. Or what if technological advances enable someone with Superman x-ray vision to simply see in your house so there’s no need to knock on the door and go in? Well, I think that could still be analyzed under the Fourth Amendment.”

Although Barrett calls herself an originalist akin to her mentor, the late Antonin Scalia, for whom she clerked, her answer did not sound very different from what a liberal judge supporting a “living constitution” would offer. The proof always lies in how the principle is applied to the specifics of a case. But her respect for the Constitution’s “level of generality,” “enough to be lasting,” suggests that she might not join the most conservative justices who dissented in Carpenter.

Writing for unanimous panels, she overturned two convictions that relied on unconstitutionally seized evidence. In one, United States v. Terry, she ruled that a woman in a bathrobe who answered the door to federal agents did not have authority to consent to a search of a male suspect’s apartment. The agents had arrested the man, did not have a warrant, and did not ask the woman who she was until well into the search. (She was the mother of his son but did not live there.) They found four cell phones and a drug-dealing ledger. Barrett wrote, “A bathrobe alone does not clothe someone with apparent authority over a residence, even at 10:00 in the morning.”

In another, United States v. Watson, she threw out a judgment based on a guilty plea because the police, acting on a 911 call from a 14-year-old boy on a borrowed phone, lacked reasonable suspicion to block a car matching his description of “boys” “playing with guns.” A passenger with a felony conviction was found to have a gun. Barrett called the 911 call “not sufficiently reliable” and concluded that “his sighting of guns did not describe a likely emergency or crime—he reported gun possession, which is lawful.”

Barrett has such a well-schooled intellect that all her opinions are intricately woven out of existing case law and statutory text, so—in the criminal justice arena, at least—she has not departed wildly from the web of precedent that confines her. She said more than once at her hearing that a judge is obliged to rule where the law takes her, which may violate her personal views. But once she’s on the Supreme Court and freer to chart her own course, then what? Stay tuned.

                Next: Details of Barrett’s Key Cases in Criminal Law

Trump Reveals America

                                                         By David K. Shipler 

Michelle Obama has observed that being president does not change who you are. It reveals who you are. The same could be said of the nation: that its president does not change who we are but reveals who we are. And what Donald Trump has revealed about America has taught us sobering lessons about ourselves.

                The United States is a highly segregated society, not only by race and class but also by politics. So little respectful conversation occurs across political lines, so few circles of friendship contain citizens of differing views, that many Americans have remarked in these last four years on how little they understood their own country.

                What has been uncovered is shocking and worrisome, but it can also be constructive if the revelations inspire a curriculum for self-improvement. The test of any society, its capacity for self-correction, has been passed by the United States repeatedly, if erratically, over two and a half centuries. Win or lose next month, Trump will have presented the country with its next challenges. Here are some of the major lessons: 

                1. The Fragility of Democratic Values.When Trump refuses to commit to a peaceful transfer of power if he loses the election, he should be instantly disqualified in the mind of every American citizen who understands that nonviolent transition is the linchpin of democracy, setting free societies apart from dictatorships. No president of the United States has ever before raised such a question about this hallowed principle. He was finally dragged into a begrudging “yes, I will” under tough questioning at last week’s televised town hall, then seemed to add a condition: “But I want it to be an honest election.” He attacked its honesty in advance with fabricated stories of discarded and altered ballots. No president of the United States has ever before campaigned against the legitimacy of the electoral process. And while impediments to voting have plagued this democracy since its founding, the Republican Party’s national strategy to silence the people’s voices through myriad means ought to be cause enough for alarm and rejection.

That Trump’s dismissal of democratic norms has not decimated his support suggests that some 40 percent of Americans who still register their approval have blind spots to the essentials of a pluralistic political system. They seem either not to recognize the threats it can face or not to value it in the first place. The lapses extend into the Republican establishment. “Democracy isn’t the objective; liberty, peace, and prosperity are,” Republican Senator Mike Lee of Utah tweeted on October 8. “We want the human condition to flourish. Rank democracy can thwart that.” Does it need to be said that liberty cannot be preserved without democracy? Evidently so.

The warning sounded by Judge Learned Hand in 1944 is relevant: “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.” 

2. The Resilience of Racial Bigotry. The election of Barack Obama confused some Americans into imagining that the country had entered a post-racial era. Instead, Obama’s very presence in the White House stimulated a backlash in certain quarters, which Trump then exploited. During his campaign and once in office, he fractured the veneer of propriety. After a long period in which submerged prejudices were largely encrypted and expressed obliquely, Trump’s words and attitudes have given permission and legitimacy for explicit bigotry. Latent racism has been reanimated, hate crimes have risen, people of color have encountered increased hostility in casual encounters with whites, and white supremacist movements have been emboldened. Trump has tapped a deeper well of racial animosity than many Americans realized still existed.

A hopeful counter-current of anti-racism has been produced among whites, demonstrated by the tens of thousands who have turned out to protest against police brutality in support of Black Lives Matter. Not since the civil rights movement has the conscience of white America been so mobilized. Still, Trump’s 40 percent support suggests a broad indifference or even hostility to the ideal of racial justice. And his ban on “sensitivity training” by federal agencies and government contractors that want to create safer workplaces for minority employees could retard racial progress.

 3. The Susceptibility to Propaganda. With the help of a vast propaganda network that includes Fox News and conservative talk radio, Trump has used smears, lies, and exaggerations to create false narratives, manipulate perceptions, and thereby expose a widespread lack of critical thinking among Americans. This disconnection from facts comes in an internet era when it is both easier and harder to get accurate information: easier because of the multiplicity of sources to rapidly check what you hear, harder because of the multiplicity of sources whose reliability is unknown. Yet the numbers of citizens who believe the falsehoods suggests little schooling in how to sort fact from fiction, do basic research, and resist believing only what confirms your opinions.

4. The Power of a Personality Cult. It is unusual for so many Americans to practice a kind of idol worship of a president, but Trump has managed to excite just such a phenomenon among millions. His narcissism at the expense of larger public interests subtracts surprisingly little from his support. In addition, the Republican Party has been readily co-opted into the adoration. Like the shell of a political party in an autocratic system, the Republicans of 2020 did not even write a policy platform at their convention, instead simply endorsing whatever Trump wishes as he goes along. This deference to a person rather than to policy or principle is a warning sign for any democracy, especially if another Trump arrives who is smoother and more sophisticated in broadening support by avoiding the coarse, insulting behavior that characterizes this president.

5. The Indifference to Personal and Governmental Ethics. Trump’s personal immorality in his manner toward women, his self-dealing in his businesses at taxpayers’ expense, his tax avoidance, his sale of governmental favors to friends and associates, his insults of military men and women, his narcissism, his practice of nepotism, and the like have provoked little outrage except on the left. Conflicts of interest abound in his administration, and his cavalier discarding of ethics rules has ruffled no feathers among his party or the citizens who support him. His is the most corrupt administration in modern America. The country’s threshold for indignation has been raised so high that it now defines an expansive field of wrongdoing that will probably be tolerated by much of the public going forward. “Defining Deviancy Down,” Pat Moynihan used to say.

6. The Politicization of the Law, Science, and Governing Institutions. Trump is not the first president to ignore the rule of law, install loyalists in regulatory positions, or use the Justice Department for political purposes. But his ability to find and recruit people who are as intellectually corrupt as he indicates the existence of a wide scope of brazen, self-serving citizens with no moral brakes and no regard for traditional limits of behavior. That part of the political class prides winning above preserving the credibility and professionalism of government institutions. The interference with expertise in medicine, the environment, and foreign policy has provoked a hemorrhage of skilled professionals from government,   damaged public health, and undermined public confidence in science. The damage, which has made hardly a dent among his core supporters, will long outlast him.

7. The Nonchalance About Hostile Foreign Influence. Republicans, once hyper-vigilant about national security, now shrug off attempts by Russia, China, Iran, and possibly other countries to exacerbate Americans’ domestic divisions and distort elections. They have been called Vichy Republicans, an overdrawn allusion to the French government that collaborated with the Nazis under German occupation. Their posture raises the troubling question of how soft a target the United States could be for undue interference in the future. Other countries have learned what Americans have learned about the society’s fissures and vulnerabilities.

8. Hatred. As each side of the political spectrum vilifies the other, the common ground is eaten away. Trump’s vulgar rhetoric, predated and now amplified by that of Rush Limbaugh, Sean Hannity, and other inciters, has driven in wedges that will not be easy to dislodge. Just as radio was used in Rwanda to incite the 1994 genocide, mass media are being used in the United States to mobilize hatred. Rightwing demonization of liberals, cleverly begun by Limbaugh many years ago, has now ignited an opposing denigration by liberals of conservatives. Consequently, a national crisis no longer unites, as it did after September 11, 2001. It splinters America.

           All this will leave the United States with an ongoing burden of problems even if Trump loses the election. Some could be addressed by improved secondary schooling. Many students are obviously not taught enough about democratic principles and institutions, the history of racial stereotyping and discrimination, or given the skills to research carefully and think critically. Such other tasks as mitigating poverty, facilitating voting, improving governmental ethics, and reconstructing the common ground essential to repair our civil society will require intense thinking and creative work. That’s the silver lining to this gloomy specter: defects are out in the open, and seeing problems is the first step in solving them.

                                    Previously published by Washington Monthly

The Method to Trump's Madness

 

By David K. Shipler 

                President Trump’s critics see him as impulsive, willfully ignorant, devoted to immediate self-gratification, and even mentally deranged. He is all of that. But he is something more, too. He is canny and calculating, more skillful at playing the long game than generally recognized.

                Even as he appears candid and unscripted, Trump has cleverly laid the groundwork in managing both public opinion and government for enhancing his power and shielding himself from the consequences of his ethical and legal corruption. And for an heir to moneyed privilege, he is remarkably perceptive about the anxieties and grievances that have driven millions of working-class Americans into his cult of personality. Many thought they were voting for a non-politician, but they got a president with the political instincts of a marksman—at least when they are his target.

                In his first significant play, beginning even before his election, he took a hammer and chisel to chip away at whatever trust Americans retained for news organizations that inform citizens on the workings of society and government. “Fake news!” he cries whenever a press report exposes his lies, incompetence, bigotry, self-dealing, spasmodic policies, defiance of law, and the like. “The enemy of the American people!” he brands the news media, reviving the wording employed by Mao, Lenin, Hitler’s Joseph Goebbels, and Stalin. To anyone who knows history, the phrase is chilling, for millions of Russians under Stalin went into the Gulag or before firing squads after conviction of the charge “enemy of the people.”

                Trump, who is ahistorical, seems untroubled by the parallel. He has another purpose, by his own account. His anti-press rhetoric may be partly inspired by momentary exasperation, but its serious aim is to groom the public’s skepticism, he told Leslie Stahl of CBS in 2016. “You know why I do it?” she quoted him as saying off camera. “I do it to discredit you all and demean you all so when you write negative stories about me, no one will believe you.”

In this, he has been shrewd enough to push on an open door. Polls showed faith in the news media declining sharply, from 55 percent in 1999 to 32 percent in 2017. Earlier this year, Gallup found, newspapers were trusted by only 24 percent of surveyed Americans, and television by 18 percent. Trump has helped this decline along, but so have some major news outlets by sliding deeply into the pitfall of politicization, where viewers and readers interested in straight, unbiased reporting can only despair.

This defect is one of the country’s most harmful, and Trump has exploited it. He has coupled his denunciations of the press with lies frequent and expansive enough to make facts and truth disappear behind a veil of uncertainty, rendering reality ethereal. The technique makes one wonder whether he has, after all, read Orwell.

If anyone wrote a how-to Manual on Dictatorship, hobbling the press would be a prominent step. In country after country, the free flow of information, so inconvenient to autocratic rule, is cured by censorship, imprisonment, or outright government ownership of the print and broadcast media.

Trump, born in the wrong country, has no such draconian options, so far. The constitutional system still restrains him, to a point. So he has words instead—his own negative press-bashing on the one hand, and on the other, his supporting megaphones of Fox News, Rush Limbaugh, and other rightwing propagandists. These are calculated to demolish the credibility of the indictments against him by investigative reporting and insider books. As already witnessed in the nonchalant reaction to The New York Times’s blockbuster expose of his tax evasion and debt-ridden finances, the strategy succeeds with a very large minority of the citizenry.

In other areas, too, Trump has been more methodical than he appears on the surface of his invective. Although he told Bob Woodward that he played down the severity of the Covid-19 pandemic to avoid creating panic, it seems clear that his playbook included an effort to keep the stock market rising and the economy booming for the sake of his reelection, and then to blame others for the deadly spread (China, the World Health Organization, various health officials and Democratic-run states). It was in line with his usual practice of scapegoating. He thereby set the stage for several hoped-for results: One, to avoid responsibility for whatever failures his administration committed. Two, to project the society’s severe political and cultural polarization onto the pandemic, so that Democrats would be vilified for shutting down the economy. Three, perhaps initially unforeseen, to scare those who took the pandemic seriously—more Democrats than Republicans—from going to the polls.

That led to another obvious example of Trump’s methodology: his strategy to undermine public confidence in the accuracy, honesty, and therefore legitimacy of elections, the jewel in our crown of democracy. Broadcasting fears of ballot fraud in advance, without a scintilla of evidence, he and his Republican operatives poison the nation’s mindset into distrusting and perhaps even disregarding the final counts. This is done as the Republicans themselves are corrupting the balloting by suppressing votes, silencing parts of the citizenry, and thus laying the building blocks of anti-democratic maneuvers to distort and manipulate the electoral process. The clear design is to create an atmosphere of doubt on both sides, to foster a mood that tolerates extraordinary and unprecedented measures, which might end with some states’ legislatures choosing electors or, finally, at the Supreme Court with Trump’s new conservative justice on the bench.

Or, it must be warned, goading his rightwing, heavily armed supporters to resort to insurrection in some form: “policing” polling places, threatening voters, even gathering in Washington with their guns if election results are disputed. Trump, their idol, has given them a wink and a nod and a blessing. In refusing to promise a peaceful transition of power, in slandering the election in advance and preparing the ground to dismiss it if he loses, he journeys close to sedition, unprecedented for a president of the United States.

The wheels of pluralistic democracy are greased by consensus, good will, common respect for facts, shared beliefs in institutional legitimacy, and the civil balance of competing interests. Donald Trump has found that his narrowest interest in growing and preserving his power are best served by eroding these principles. He is not doing so as erratically as his tweets suggest. Watch him. He is progressing step by deliberate step.   

Supreme Court or Supreme Legislature?

 

By David K. Shipler 

                The death of Justice Ruth Bader Ginsburg and the immediate swirl of politics surrounding a choice of her successor ought to remind Americans of what they are losing in their stressed democracy. The Supreme Court, designed to transcend bitter political divides, now reflects them instead. This is obviously the doing of the justices themselves. But it is also the sin of presidents and senators who nominate and confirm them.

 The judiciary has been the only one of the three branches of government of late to function with reasonable responsibility. The executive branch under President Trump has defied the law, induced chaos, promoted ethnic hatred, and ignored expertise from its own scientists and generals and diplomats. The legislative branch has deadlocked in divisive bickering over police reform, voting rights, prescription drug costs, renewed economic aid during the pandemic, and a host of other urgent matters. Federal judges, meanwhile, have steadied the ship on numerous occasions—though not all—by restraining some radical efforts to curtail immigration, abortion rights, and voters’ access to the ballot box.

But the judicial branch has never been entirely apolitical, if politics means the advocacy of certain policies over others, whether in the law or in social values. Judges ascend to the bench carrying their particular legal and social philosophies. The question is how much they can put aside in the interest of upholding precedent, interpreting the law, and applying the principles of the Constitution. The question is how much they can evolve over years in those exalted positions. And the question is not whether, but to what extent, the courts stand resilient against the vicissitudes of politics and the commands of ideologies.

It is no accident that countries careening toward authoritarianism—Hungary and Poland come to mind—are compromising the independence of their judiciaries, and that longstanding dictatorships—China and Russia, for example—never had true judicial independence in the first place.

As many politicians from Trump on down seek judges whose opinions echo their own, they risk scoring short-term victories at the cost of eroding what the Framers erected as a precious pillar of pluralistic democracy. The latest example is the unseemly struggle over Ginsburg’s replacement.

If the Constitution’s prescription were faithfully followed, there could be no legitimate objections to the current president nominating a candidate and the current Senate either confirming or rejecting. That is what the Constitution provides. It says nothing about a president’s authority declining in the last part of his term. Democrats would have no traction to complain.

But of course the Republicans did not follow the Constitution when Justice Antonin Scalia died in President Obama’s final year. Under the corrupting leadership of Senate Majority Leader Mitch McConnell, Republicans refused to consider Obama’s well-qualified nominee, Judge Merrick Garland, and left the seat empty for a year, hobbling the Court in close cases. Now, suddenly, the Constitution is revived by McConnell to press forward, giving Trump his third justice and tipping the balance on the Court sharply to the conservative right.

Unless justices display unexpected impartiality, this is likely to reduce the Supreme Court in stature to the level of a supreme legislature, translating the political will of the conservative right into case law. It will move the Court farther from the public’s predominant views on numerous issues, including a woman’s right to abortion, which polls show is supported by about two-thirds of Americans. Voting rights, the separation of church and state, environmental protection in an era of climate change, congressional oversight authority, discrimination in the workplace, various rights of criminal defendants, and a panoply of other areas crucial to shaping American life are at stake. One wonders whether liberal advocates will refrain from turning to the courts for redress out of fear of creating long-term, unwelcome precedents.

Chief Justice John Roberts, who is regarded as keen to preserve the Court’s integrity, has been a swing vote in occasionally attempting to moderate opinions by his more radical conservative colleagues. Last term he joined liberal justices, for example, in overturning a Louisiana abortion law that would have required any physician performing abortions to have admitting privileges at a hospital. The effect would have been to leave women virtually without such services in the state. But his reasoning was purely on precedent: The Court had earlier—against his vote—overturned a similar law in Texas in 2016. His conservative colleagues, who had vowed under oath in their confirmation hearings to respect precedent, did not do so.

Similarly, Roberts joined the four liberals to block Trump’s attempt to repeal DACA, the Obama policy of allowing undocumented immigrants brought to the US as children to remain, attend school, and work. His reasoning was not based on humanitarian grounds but on the administration’s failure to follow procedural rules for making such a change.

With a new conservative justice in Ginsburg’s seat, though, the right will not need Roberts, and his weight as a swing vote will be much reduced.

Chief justices in the past have also sought to maintain the decorum of legitimacy. Most notably, Earl Warren, who was a Republican governor of California appointed by Republican President Dwight D. Eisenhower, worked successfully to assemble a unanimous ruling in Brown v. Board of Education, the 1954 case finding school segregation unconstitutional. Such a momentous decision called for a ringing declaration without dissent. One result was a blossoming of bumper stickers saying, “Impeach Earl Warren.”

However, it’s also worth remembering that narrow decisions on major social and legal issues are far from new. The famous Miranda warning was ordered by the slimmest 5-4 majority. Warren wrote the opinion, but he could not muster more votes for the 1966 ruling in Miranda v. Arizona to require officers to inform people they arrested of their rights under the Fifth and Sixth Amendments to silence and a lawyer, respectively.

(By 1973, with Earl Warren gone, the Court went the opposite way, ruling 6-3 in Schneckloth v. Bustamonte that police had no obligation to inform citizens of their right under the Fourth Amendment to refuse to be searched without a warrant.)

Warren’s example also illustrates the hopeful portrait of a justice eschewing political ideology or even evolving while on the bench. The same can be said of two more recent Republican appointees, David Souter and John Paul Stevens, who reached far above traditional partisanship. On the liberal side, Stephen Breyer has done that as well.

That annoys partisan zealots who want to make justices their own, and who don’t grasp the responsibilities of judging. Roberts has come under attack from the right. Breyer has disappointed some liberals on occasion. The halcyon days of consensus on the transcendence of judges have passed since the Senate voted 98-0 to confirm Antonin Scalia in 1986 and 96-3 to confirm Ginsburg in 1993. Clearly, liberals and conservatives were not geared up to oppose those two just because they stood at the other end of the spectrum. A different set of expectations prevailed: that the black robe would liberate judges and justices from narrowness and elevate them to a high perch, affording them a view far beyond parochialism.

 Instead, the Senate has promoted judicial partisanship. As long as the filibuster remained in place for judicial nominees, requiring at least 60 of 100 votes for confirmation, the breadth of viewpoints in the Senate had to be respected. But after Republicans repeatedly blocked Obama’s nominees, the Democratic leadership eliminated the filibuster for lower court judges, requiring only a 51-majority vote for approval. When Republicans took over, they extended the rule to Supreme Court nominees as well, opening the door to more justices with extreme and unyielding ideologies, who could be rammed through by a narrow majority.

To make matters worse, some Democrats are talking about expanding the size of the Court if they take the Senate and then eliminate the filibuster for all measures. If that is done, additional Democratic-named justices could tilt the Court back toward the center or the left. Then, obviously, Republicans could do the same once they take power, and the Supreme Court would be relegated to a mere agency of pinched politics, a body of lifetime justices unaccountable to the people. Democracy would fail its supreme stress test.

A Quiz for Trump Supporters

 

By David K. Shipler

 

                Dear Trump Supporter:

                                Here are some questions to consider and then answer for yourself.

                1. Do you tell multiple lies a day about matters both large and small?

                2. Do you cheat on your spouse?

                3. Do you antagonize your friends and suck up to your enemies?

                4. Do you think up mean, derisive nicknames for people you don’t like?

                5. Do you spread rumors and conspiracy theories without knowing if they’re true?

                6. Do you think that Americans who join the armed forces are “suckers?”

                7. Do you think that American soldiers who die in battles for their country are “losers?”

                8. Do you encourage violence against people you dislike?

                9. Do you disparage women?

                10. Do you think that you can grab any woman’s genitals whenever you wish?

                11. Do you ridicule people with disabilities?

                12. Do you harbor and express distaste for non-white Americans?

                13. Do you excoriate illegal immigrants and then hire them?

                13. Do you resent legal immigrants who come to the U.S. to seek a better life?

                14. Do you ignore laws and encourage others to do so?

                15. Do you fail to pay people who have done work for you?

                16. Do you ignore and criticize your doctor’s advice on life-and-death medical conditions?

                17. Do you gather people together in ways that you know will endanger their health?

                18. Do you think it should be difficult for citizens to vote?

                19. Do you think federal officials should be able to profit financially from their decisions?

                20. Do you like dictators more than democratically elected leaders?

                21. If you answered no to these questions—or even to most of them—why do you want such a man to lead your country?

Policing and Poverty

 

By David K. Shipler 

                Imagine walking into a police station for help as a victim of crime and also getting help as a victim of poverty. Think how policing would change if, under the same roof, assistance were available for the problems of hunger, housing, health, addiction, and joblessness.

                This sounds like pure fantasy, especially as unjustified police shootings continue, the country erupts in protests, and white supremacists threaten Black Lives Matter demonstrators with violence that turns deadly. In many black neighborhoods, the police are seen as the enemy—just another gang, as some residents have said.

But the constructive reform of policing need not be lost in the fog of fury. It needs to be kept as a focused goal whose achievement will take unprecedented cooperation among community activists and law enforcement, including police leadership and officers in the ranks.

The problem has two parts. One is the use of force by cops who are scared or bigoted or poorly trained or all of the above. A great deal of study and thinking has gone into that issue, and lots of sound policies have been proposed, though too rarely adopted, in scattered jurisdictions among the nation’s 18,000 police departments.

The other part has been mostly neglected, however: the clustering of diverse services so that officers can be relieved of onerous tasks for which they have no expertise. It’s a good bet that you won’t be able to find a police officer who loves being called to a “domestic dispute,” where parachuting into a home without context can mean encountering unpredictable, split-second dangers. Nor do cops relish dealing with people suffering from mental illness, who account for a large number of encounters. In short, police are confronted by issues they cannot address, and need tools and training they do not have.

The solutions cannot be reduced to bumper-sticker slogans such as “Defund the Police.” If that implies abolishing the police, it’s a ridiculous prescription for vigilantism in neighborhoods where lawlessness would reign. On the other hand, if it means shifting some funds from policing to social services, it makes sense, especially if that assistance is readily available, and cops can refer people easily.

Police officers interact with many citizens who are in or near poverty, whether to arrest them or protect them. Poverty, for its part, is a constellation of problems that span a universe of hardships that require holistic measures. As some police departments have learned, addressing housing and other factors in the lives of those arrested for drugs, for example, can reduce recidivism. The LEAD (Law Enforcement Assistance Diversion) program, which began in Seattle, enables officers to send low-level drug and prostitution defendants into a web of services, including mental health, housing and drug treatment, instead of the normal criminal justice system. Participants are 58% less likely to be rearrested, according to the LEAD National Support Bureau, which is a project of the Public Defenders Association.

LEAD participants in Seattle improved their lives dramatically from before their enrollment, a 2016 evaluation found. They were “89% more likely to obtain permanent housing . . . 46% more likely to be on the employment continuum (i.e., in vocational training, employed in the legitimate market, retired),” and “33% more likely to have income/benefits.” Nearly fifty jurisdictions are either operating or launching the program, a good start but a tiny fraction of what’s necessary.

Americans in or near poverty who present themselves to an agency for one particular problem—at a food bank, say—invariably struggle under a broad burden of other issues. The chain reactions among them are much more extensive than popularly understood. Poor housing, for instance, is a key link to illness, especially childhood asthma, which is higher among families in poverty. Roaches, mold, and dust mites can trigger asthma attacks, which result in kids missing school and parents missing work to take them for treatment. Doctors at the pediatrics department of the Boston Medical Center learned years ago that the treatment was practically futile when the children went back to homes full of antigens, so they began to enlist lawyers to press landlords to improve conditions. The idea has caught on, and now 442 medical-legal partnerships exist in 48 states and the District of Columbia.  

 Some nonprofits have also established one-stop shopping for multiple services. Bread for the City in Washington, DC, began as a food pantry, established an intake procedure to identify families’ other problems, then added a medical clinic, job readiness instruction, and legal services to help people with housing, immigration, and access to government benefits.

There is a critical need across the country for such gateways through which people can pass into assistance for a range of their hardships. We already have institutions that could be gateways—in normal, Covid-free times. Schools, for example. Teachers see problems such as hunger and poor health but don’t have the tools to help families address them. So schools, with proper funding, would be natural places for counselors and others who could give assistance. Also, public and affordable housing projects, where problems of poverty are legion. Probation offices, where those convicted of crimes are required to make scheduled appearances. And, of course, police departments, which see citizens who are down and out for arrays of reasons that cannot be ignored without consequences for the entire society.

Windows of opportunity open briefly. This is one. It goes without saying that America ought to be great enough to translate the anger, the hurt, the protest into practical reforms. 

Previously published by Washington Monthly.
   

 

 

The Golden Rule of Politics

 By David K. Shipler

 

                According to the Golden Rule of politics—Do Unto Others  As They Have Done Unto You—Democrats now have an opportunity to smear all Republicans, just as Republicans have smeared them, with a fringe candidate likely to go to Congress. She is Marjorie Taylor Greene, who won her Republican primary in a Georgia district so extreme that she’s bound to be elected to the House of Representatives in November, and then carry into the halls of the Capitol her anti-Semitic, anti-Muslim, racist rantsabout Trump’s opposition by Satan-worshiping child sex traffickers. She is an aficionado of QAnon, the inchoate association of conspiracy theorists that the FBI regards as having the potential for domestic terrorism.

The fact that Greene’s attitudes are not shared across the Republican spectrum—albeit the narrowing Republican spectrum—would not deter astute Democratic campaign operatives from casting them as representative, as they’ve already begun to do. “Georgia Republicans, and Republican candidates running across the country, will have to answer for her hateful views in their own campaigns,” said the chair of the Democratic Congressional Campaign Committee, Cheri Bustos.

In this they’ve had help from President Trump, who called her a “future Republican star.” So too, the Republican leader in the House, Kevin McCarthy, first denounced her statements but then rebuffed pleas from some of his colleagues to support her opponent in the primary, John Cowan, a conservative physician. The minority whip, Steve Scalise, did campaign and raise money for Cowan. Still, funding help for Greene reportedly came from other prominent Republicans, including Mark Meadows, now Trump’s White House Chief of Staff, and Congressman Jim Jordan, the outspoken Trump defender.

Democrats have traction here to discredit the Republican establishment as moving in the opposite direction of most Americans in an age of heightened consciousness about racial injustice and yearning for national healing. Should they do it?

It’s tempting. When Democratic Representative Ilhan Omar of Minnesota began her tenure two years ago with a couple of remarks tapping into old stereotypes of Jews—that money buys Congressional support for Israel by people who “push for allegiance to a foreign country”—Republicans turned her into a poster child of the Democratic Party, peddling the calumny that a Democratic White House would be populated by anti-Semites. When she and her “progressive” colleagues, Reps. Rashida Tlaib and Alexandria Ocasio-Cortez, proposed left-wing policies on social safety nets, corporate regulation, climate change, and the like, Republicans pictured all Democrats as socialists, a stereotype that took hold in some quarters of the electorate, even as the moderate Joe Biden ascended toward the nomination.

Republicans continued the tactic after the Greene victory. Instead of disavowing her paranoid bigotry and wild fantasies about Satan and an “Islamic invasion,” the Republican National Campaign Committee answered Newsweek’s question about Greene this way, through its communications director, Chris Pack: "Have you asked every Democrat if they will support racist anti-Semite Ilhan Omar since she's won her primary last night?"

The Republican Party’s inability to distance itself from nutty conspiracy theories and hate-filled candidates has overwhelmed its dwindling band of better angels. Dissident movements have emerged, most notably the Lincoln Project of canny Republicans who are producing devastating ads against Trump. Now and then, some elected leaders struggle against their party’s downward spiral into racist xenophobia, but mostly in vain. They removed Rep. Steve King of Iowa from his committee assignments after he wondered in an interview what was wrong with “white supremacy.” He then lost his primary. Some pundits think McCarthy and other Republican leaders will have the same problem with Greene and will try to temper her tantrums once she gets to Washington.

Unfortunately, though, her views have resonance in the Republican mainstream, starting in the White House. She is no farther from the core of the current Republican base than the few remaining Republican moderates, who also sit at the margins a party that needs a resounding defeat in November to collapse and reconstitute itself in a responsible form.

Having inherited the Southern Democrats’ mantle of segregationist support after the civil rights acts of the 1960s, the Republicans under Trump have spread the flames of ethnocentric resentment into parts of the Northern white working class. “Trump says what I think,” is a line heard often from his supporters. No doubt, “Greene says what I think” could be heard from her supporters as well.

Trump, Greene, and others have made vivid the Republican Party’s disdain and resentment for  Americans who are not white. It is easy to tick off the methods: The party seeks in multiple ways to suppress minority voting and picks judges who allow protections to be undermined; Republican-appointed Supreme Court Justices have gutted the Voting Rights Act, with catastrophic disenfranchisement of black and Latino voters. Its governors and state legislators block the expansion of Medicaid for the poor, bringing disproportionate harm to the health of people of color—an obstruction also facilitated by Republican-appointed Supreme Court justices who ordered that the expansion be optional. Similarly, Republican-led states with large non-white populations impose lower caps on unemployment benefits, according to a Rand Corporation report. And on and on.

Trump cleverly combines racist innuendo with explicit policy aimed at reducing the impact of minorities. He wonders aloud if Kamala Harris is eligible, given that she is the child of immigrants. He orders the Post Office to cut out overtime and take other measures to impede the delivery of mail-in ballots in a time of Covid. He orders the Census Bureau to stop counting a month early, obviously hoping for an undercount of minorities, who tend to need door-to-door interviewing to get into the numbers—numbers that will determine the allocation of seats in Congress and the flow of federal funds to localities.

It would be strangely comforting to be able to say that the Democrats would be intellectually dishonest to use Greene as their poster child for the Republicans. She is extreme, to be sure. Sadly, however, she taps something deep and ugly in today’s Republican Party. And since American election campaigns are actually anti-educational, lowering debate to slogans and smears, since they contain nothing of the the elevating, informative exercises to which a great democracy aspires, since they are not the platform for serious deliberation over competing ideas for solving the momentous problems of our time, perhaps Greene can be cited to expose further the vein of vile dysfunction that afflicts political thinking.

In 2016, Michelle Obama said nobly that when they go low, we go high. Yes, it’s mostly the way of Democrats, who have a penchant for embracing complexity and nuance, for eschewing calumny, and for mostly—not always, certainly—respecting truth as the key nourishment of an open, pluralistic society. Does a large enough majority of American voters also respect truth and decency for those ingredients to produce a winning campaign? It’s an open question.

It’s also a question for centrist Republicans who happen to admire their particular senator or representative and want to vote for the person not the party. The hard fact is that when you vote for a legislator and help give that person’s party a majority in the chamber, you are voting for the party’s positions, perhaps those you detest.

Take Senator Susan Collins of Maine, one of a dying breed of moderate Republicans. She supports abortion rights but contributes to the Republican’s majority in a Senate that has confirmed anti-abortion Supreme Court justices, including Brett Kavanaugh, whom she voted to confirm after he insincerely pledged to respect precedent in abortion cases. He broke his word the first chance he got, by joining the dissent when the Court ruled unconstitutional a Louisiana law requiring abortion providers to have admitting privileges in hospitals. The law would have disqualified all but one doctor in the state from performing abortions, and the Court had previously struck down a nearly identical law in Texas, which set the precedent for the Louisiana case. Kavanaugh’s defiance of that precedent made Collins look either naïve or hypocritical. Her voters who share her support for abortion rights might justifiably feel betrayed as well.

            So, you can’t reasonably vote for a party’s candidate without accepting the party as a whole—its policies and priorities and values. And as Donald Trump has demonstrated, what seems a marginal aberration today might very well be governing tomorrow. The Democrats ought to keep a spotlight on Marjorie Taylor Greene. She is not alone.

Beware of a Cornered Trump

By David K. Shipler
                As President Trump’s poll numbers slip four months before the election, he and his frenzied staff have launched an end game of wild thrashing that could bring further damage to a country they pretend to love.The closer defeat looms, the more desperate the death throes of a deranged administration. It lunges for levers of power and propaganda. It undermines institutions that stand above politics. It smears physicians who work for the public’s health. It attempts to conceal pandemic data, Soviet-style. It issues absurd decrees to local school boards to open in the fall or else. It dispatches unidentified federal forces to kidnap peaceful protesters. It flails out against measures to ease voting. And these are only the omens. A final spasm—if it is final—seems likely.                Insurgencies, dictatorships, and the like often tend toward untamed outrages as they are backed into a corner and face annihilation. Similar impulses appear ascendant in Trump’s criminal government, where the rule of law is a minor irritation and self-enrichment at taxpayers’ expense is routine. He has shed his White House of responsible advisers, replacing them with cruel dogmatists whose ideology of ignorance is a plague on the nation. It’s hard to see impediments to the abuses. Trump has no moral brakes. His values are those of a mafia boss who rewards and punishes those who protect or oppose him. Never in U.S. history has a president commuted the prison sentence of the chief witness against him, as Trump did for Roger Stone, who defied every legal requirement to testify on Russia’s alleged collaboration with the Trump 2016 election campaign. No “snitch” was Stone. His silence stymied Robert Mueller’s investigation and enabled Trump to crow, “Hoax!” The full truth may never be known.Where are the Republicans who chant “law and order” when their party leader ignores the law and sows disorder? Where are the conservatives who don’t fight to conserve the American constitutional system that Trump and his accomplices try to shred? If there is a glaring lesson from the Trump era, it is how easily compromised are the nation’s founding principles, how deferent to autocratic aims are those who wear the camouflage of liberty: Congressional Republicans, right-wing broadcast personalities, self-righteous evangelicals, flinty citizens who make a show of individualism and resistance. In Sinclair Lewis’s 1935 novel It Can’t Happen Here, a state militia loyal to the eventual fascist president, Buzz Windrip, “considered him their general and their god.” The militia was a precursor to the Minute Men, his private troops in black capes or white or khaki shirts, who beat, arrested, and confined—and thereby purged books, manuscripts, and thinkers from the political landscape. In 2020 America, armed right-wing vigilantes have already attacked Black Lives Matter demonstrators, and have been encouraged by the Trump campaign to “monitor” polling places in November. The smell of political violence is in the air.This fear could be overdrawn—let’s hope so. Trump’s incompetence as a manager might save us. But he has a zealous base and a compliant coterie of collaborators. Consider this passage from Lewis and its familiar ring, describing the fictional Windrip’s supporters before a rally in Madison Square Garden: “Eighth Avenue, lined with cheapjack shops, was packed with drab, discouraged people who yet, tonight, were tipsy with the hashish of hope. . . . they were people concerned with the tailor’s goose, the tray of potato salad, the card of hooks-and-eyes, the leech-like mortgage on the owner-driven taxi, with, at home, the baby’s diapers, the dull safety-razor blade, the awful rise in the cost of rump steak and kosher chicken. . . . Kind people, industrious people, generous to their aged, eager to find any desperate cure for the sickness of worry over losing the job. Most facile material for any rabble-rouser.”Trump’s mental and emotional disabilities have infected many under him, and they in turn create a loop of reinforcement for his most destructive impulses. Education Secretary Betsy DeVos parrots his dangerous insistence that schools reopen entirely in the fall or risk losing federal funds. Acting Homeland Security Secretary Chad Wolf adopts a callous plan to deport international college students whose classes proceed online (before uproars and lawsuits force a reversal). He and Attorney General Bill Barr begin to mobilize elements of law enforcement for political ends, specifically to tout “law and order” in Portland, Oregon, where the U.S. Marshal’s Service has been deployed in violation of local officials’ demands to depart and halt their violent harassment and false arrests of demonstrators. It would be wise to see Portland as only the first stepping stone toward as much repression as this administration can muster in the coming months. Pity Trump and the country he leads. Raised in a family rife with emotional abuse, as his niece Mary Trump has documented, he suffers from narcissism and a fragile ego that deliver him to an unending reliance on lies, conflict, and bullying. His obvious brain dysfunctions prevent him from processing information, reasoning logically, remembering what he said a minute earlier, and governing effectively. He cannot stand anyone smarter or more popular than him, so his economic adviser, Peter Navarro, and anonymous acolytes try to take down Dr. Anthony Fauci, whose credibility in polls far exceeds Trump’s.The president of what is supposed to be the greatest country in all of human history cannot tell the difference between image and reality, or cares more about image than reality, as he orders a halt in reporting Covid hospitalizations to the CDC and laments the increase in Covid testing because it makes the case numbers go higher. Is it possible that his mental defect means that he doesn’t realize that the actual incidence of infection is a fact independent of how many are detected by tests? Or is he just trying to fool his fellow Americans? And how many will be fooled? Or frightened?We’ll find out in November.

The Paragraph Missing From The Declaration of Independence

By David K. Shipler
In his draft of the Declaration of Independence in 1776, Thomas Jefferson included this denunciation of the King of England’s trade in human beings. It was deleted by the Continental Congress, much to his chagrin. He nonetheless retained it in copies that he sent to those with whom he corresponded, demonstrating that as a slave-owner who detested slavery, he was as complex as the society he guided. On this and every July 4, it is worth considering whether our history would have taken a different course had the men of the Congress been enlightened enough to include it. As the reporters of National Public Radio take turns reading the Declaration to mark every Fourth, they would do well to add this condemnation, noting its unfortunate demise.
By Thomas Jefferson
                He [King George III] has waged a cruel war against human nature itself, violating it’s most sacred rights of life & liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. This piratical warfare, the opprobrium of infidel powers, is the warfare of the CHRISTIAN king of Great Britain. Determined to keep open a market where MEN should be bought and sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce.