Courts and Constitution Won't Save Us

From an Orange Menace 47 Presidency

Face it US-Americans, it appears ever more likely that bourgeois electoral and rule of law democracy US-American-style is going to give “the most dangerous criminal in human history” (Noam Chomsky's description of Donald Trump in January 2020) a second stint in the world's most dangerous job.

Denial of this dark reality is at one level understandable.

One of the saddest things I’ve seen on social media over the last couple of years is the large number of liberals and even progressives who think that the corrupt and creaking United States capitalist criminal justice system is going to save us from a second and worse presidency for the rabid fascist malignancy Donald “Immigrants are Poisoning Our Blood” Trump.

The belief persists in defiance of abundant evidence to the contrary.  After Trump’s many-sided effort to subvert and negate the 2020 presidential election culminated in a mass physical assault on the US Capitol meant to block the certification of Joe Biden’s Electoral College victory, the US Senate was unwilling to perform its at once parliamentary and legal/criminal justice duty by voting in sufficient numbers to convict Trump for inciting insurrection. At 53-47, the Senate trial tally came ten votes short of the ancient US Constitution’s two-thirds requirement.  A vote for conviction – possible but for many Republican Senators’ fear of political and physical retribution from Trump’s fascist base – would have forbid the tangerine-tinted tyrant from running again.

In 2022, the US House Select Committee on January 6^th’s hearings and report demonstrated and documented multiple dimensions of Trump’s attempt to overthrow previously normative US bourgeois electoral and rule of law democracy: Trump’s fraudulent dissemination of false allegations of election fraud even as Trump lost dozens of election-challenging lawsuits; Trump criminally pressuring his Vice President to illegally refuse to count Biden’s Electoral votes on January 6; Trump trying to corrupt the US Department of Justice on behalf of his knowingly false claims of a stolen election; Trump criminally pressuring state legislators and officials to alter the election’s outcome in their states; Trump obtaining false Electoral certificates and sending them to Congress and the National Archives; Trump pressuring US Congresspersons to object to valid Elector slates; Trump purposely verifying false information in a federal court; Trump calling a giant frothing mob of his supporters to Washington DC and sending them – with AR-15s in hand if he’d had his way – to the US Capitol to “fight like Hell” to “take back your country” on January 6; Trump inciting further bloody mayhem at the Capitol by sending a social media message condemning his Vice President; Trump refusing for hours to use his power to call off his rioting thugs’ attack on the Capitol; Trump refusing to act on advance intelligence warning that far-right/fascist groups were planning violence in Washington DC on January 6; Trump  failing to use his “authority and responsibility to direct deployment of the National Guard in the District of Columbia” of “any Federal law enforcement agency” on January 6.

Despite these findings and the January 6 committee’s referral of Trump to the US Department of Justice for prosecution on the charge of trying to overthrow the US government, neither US Attorney General Merrick Garland nor Garland’s special Trump prosecutor Jack Smith has charged Trump with insurrection, conviction for which would barr Trump from becoming president again.

Of all the 91 felony counts Trump faces between state (New York and Georgia) and federal (his election subversion and obstruction case in Washington DC and his classified documents in Florida) courts this year, none has the potential to constitutionally prevent Trump from re-taking the presidency. A US Senate impeachment conviction for “high crimes and misdemeanors” or a federal conviction for insurrection would be required.    

It’s not at all clear that conviction on any of the counts he’s facing would stop Trump from defeating the remarkably unpopular Biden, who trails Trump in national match up polls and in the handful of contested states that absurdly determine presidential election outcomes under the archaic, anti-democratic US Electoral College system.  If anything, the criminal and civil cases against Trump have served as a propaganda and fundraising boon for him, seeming to validate the narrative that he is being persecuted by a “radical left” “deep state” that has “politically weaponized” the justice system against him and by extension his supporters.

Also not clear is whether Trump will face any criminal verdicts prior to the 2024 presidential election. His big money legal defense, funded largely out of his political donations, has exploited the corruption and inertia of criminal justice authorities to push his complex and lengthy trials into the middle of the election season.  It seems distinctly possible if not likely that he will be able to wait the trials out long enough to cancel them through re-election. We also should not rule out the possibility that the revanchist Supreme Court he did so much to create during his first fascist presidency will rule that he enjoys immunity from criminal prosecution for “official acts,” save those for which he is impeached by the US House and convicted by the US Senate (such a ruling might seem like a stretch but it is possible).

If re-elected, Donald “Be Wild” Trump will have the ability to strike down federal charges against him through the constitutional presidential pardon power and his constitutional authority to cancel US Justice Department prosecutions.

As POTUS47, Herr Trump will have no serious difficulty nullifying or at least indefinitely postponing state cases against him. 

His personal fortune may suffer a bit from the lawsuits against him in New York, but, well, so what? Are we really supposed to get excited about financial hits against Donald “Take Down the Metal Detectors” Trump as he takes up the White House again in the name of “retribution,” and “rooting out” political opponents (“Marxists, socialists, and communists,” absurdly and falsely conflated with the capitalist-imperialist Democrats), finishing the big nativist “Wall,” invading Mexico, building big new concentration camps for “illegal” immigrants, sending federal troops to repress protests and occupy cities, removing “Marxists” from the educational system, and pushing “drill, drill, drill,” meaning unlimited fossil fascist ecocide?

Speaking of the criminal justice system and what awaits us on the current trajectory, Business Insider recently reported this: “U.S. District Judge Lewis Kaplan capped off an at times surreal day in federal court with one final piece of advice for jurors who had just found that former President Donald Trump must pay $83.3 million in damages to E. Jean Carroll. ‘My advice to you is that you never disclose that you were on this jury, and I won't say anything more about it,’ Kaplan said after the verdict was read. "

Translation: “Dear jury, Trump has a bunch of armed supporters who would like to kill you and your family members for finding against their Dear Leader.”  How fascist is that?

Yesterday (Thursday February 8) was a really bad criminal justice system day for Biden and a really good criminal justice system day for Trump.  It was abundantly clear from the Trump-crafted Supreme Court’s questions and comments to lawyers in  Donald Trump v Norman Anderson et al that the nation’s highest judicial body will (of course) put an inglorious end to the fantastic liberal dream that Trump will be kept off state presidential election ballots on Fourteenth Amendment grounds.  This hopey-changey fantasy has always struck me as something akin to a cargo cult. 

But the real criminal justice kick in the gut for Team Biden (which probably prefers Trump on rather than off presidential ballots) yesterday came with the report from Robert K. Hur, the federal special counsel investigating Biden’s classified document problem.  Hur absolved Biden from criminal wrongdoing partly because he determined that Biden’s mishandling of documents was largely a reflection of Biden’s (real or alleged) poor memory and decrepit mental state. As a New York Times headline rightly captured, the report is both a “legal exoneration” and a “political nightmare” for the bumbling 81-year-old Biden, who responded with an angry press conference during which he confused the presidents of Mexico and Egypt.    

Think courts, prosecutors (“special” and otherwise), special counsels, juries, and judges are going save us from a second Adolph Trump presidency?  Think again.

And while you are doing that think also about how much Trump has benefited from the Constitution whose “termination” he once advocated.  He was elected in the first place despite losing the national popular vote thanks to the ridiculous democracy-flunking Electoral College. 

Trump was able to successfully appoint three far-right justices to the monumentally corrupt and constitutionally lifetime-appointed Supreme Court and to avoid Congressional conviction for the January 6 insurrection in January of 2021 thanks in great part to the absurdly right-tilted but constitutionally mandated minority rule malapportionment of the excessively (but constitutionally) powerful Senate, which grants wildly disproportionate but constitutional power to the nation’s most reactionary regions and states. 

Trump can garner massive right-wing dark campaign finance money from the business class  thanks to the illegitimate but fully constitutional high court’s openly plutocratic 2010 Citizens United decision. 

Thanks to the right-tilt of the Constitution’s noxious Electoral College, the pathetic Weimar Dem and blood-soaked warmonger Biden needs to beat Trump by 4 to 5 percentage points in the national popular vote to retain the White House in 2024-25.  That seems highly unlikely.  

Revolution anyone?