Is this how a republic dies?

This has been a dismal week for democracy, and if you’re not ready for some depressing and a little painful conversation, perhaps you’d rather switch over instead to our always upbeat travel blog “Travels With Arne and Ruth” at https://medium.com/travels-with-arne-ruth/latest.] If the headlines haven’t been depressing enough . . .

First as to the debate debacle, I cannot add much to the abundance of analysis which you’ve no doubt already seen except perhaps a footnote: a few voices have been heard, and I heartily agree, that to remain a viable candidate Biden has to demonstrate some spontaneous sharpness; the most convincing way to do this would be to sit for an unscripted hour-plus interview with preferably more than one respected at least arguably reasonably neutral news hawk. Scripted scheduled teleprompter speech rallies just aren’t going to move the needle back. And please spare us the shifting excuses -- first his handlers said he had a cold, and a week later remembered he was jet lagged from having been to Europe two weeks earlier (he apparently returned from the trip to France and Italy on June 14^th). Accurate or not, they too won’t move the needle.

If Joe cannot regain his footing, all of the successes of his administration -- and there have been many -- will be for naught on election day, and we may just be handing Trump an easy ride. It’s my humble opinion that we could well be better off as a nation if Biden were to withdraw from the race if he just doesn’t have a fair shot at winning. Even chaos on our side in picking a replacement candidate who might ultimately become a winner is to me better than what would look like certain defeat and national disaster, and Trump.

If only the bad debate showing were the only depressing news of the week. Since I became a lawyer sixty years ago I don’t remember any period in legal  history where so much radical change has been effected so quickly. In the space of one week the John Roberts Supreme Court has given us a president immune from virtually any criminal responsibility for actions committed from the day he’s sworn in until the day he leaves office -- IF he leaves office; attempts to subvert the election voting him out of office, even to the point of insurrection in the closing days of his term, are evidently henceforth immune from criminal prosecution.

Next, abruptly reversing forty years of established administrative agency law, we have now a legal system in tatters with thousands of federal regulations newly subject to fresh litigation with essentially no statute of limitations; anticipate challenges to established FDA-approved prescription drugs (watch out mifepristone, they’ll be coming after you again, very soon), and to clean air or water regulations, against safe food requirements, and attacking literally thousands of other public protection rules. More than any of the other Supreme Court jolts of the year, this one has delivered the biggest bonanza to conservative business and the wealthiest class. This ruling alone could tie up the federal courts in knots for years to come.

Thanks to the Roberts Court this week cash or other valuable “gratuities” to public officials given after action favorable to the donor are no longer federal crimes; only “bribes” given before the official’s action could now put the donor in federal prison. “Thank you for granting me that exception to the clean water requirements which will allow me to dump sludge into the nearby river; please accept this four-year university scholarship for your son as a token of my gratitude.” No problem.

And racial gerrymandering of Congressional districts likely will insure that white Republicans will continue to enjoy an easier path to victory in southern states thanks to Alexander v. South Carolina State Conference of the NAACP.

In other Court news, thanks to the tepid and fractured Rahimi decision discussed in my last two blogs the country will remain a land awash in guns where a convicted felon can only have his guns taken away after a scheduled court hearing and only for a limited time like two years; virtually everyone else -- everyone else! -- is free to tote essentially automatic rapid fire guns.

Add to this the revolution effected by the Roberts Court in Dobbs in 2022 devastating women’s reproductive rights and  the Court has not just tinkered with established law, it has shredded it violently to enact a severe right-wing agenda. All thanks to first term Donald Trump and the connivance of Mitch McConnell to over-stack the Supreme Court. It doesn’t take much imagination to anticipate what second term Donald Trump may give us; he and his close allies regularly spell it out for us.

Since June 27 other events have also contributed to a downhill avalanche. Donald Trump has amplified calls for military tribunals for high-profile political figures. Military tribunals! Over the weekend, he shared posts on his social media platform, Truth Social, that advocated for "televised military tribunals" and the jailing of various political opponents. The posts Trump circulated called for the prosecution and imprisonment of prominent politicians, including:

President Joe Biden

Vice President Kamala Harris

Senate Minority Leader Mitch McConnell !!

Senate Majority Leader Chuck Schumer

Former Vice President Mike Pence !!!

Former House Speaker Nancy Pelosi

Former Representative Liz Cheney

Another post shared by Trump featured images of fifteen current and former elected officials, including members of the House committee that investigated the January 6, 2021 Capitol attack.

No doubt his supporters will laugh quietly and say Trump is just being Trump . . . and indeed it seems he is. Will anyone truly be able to claim surprise if early next year an angry vengeful re-elected President Trump illegally orders like-minded military police or FBI agents to arrest and detain some or all of these people? I think we have to anticipate that a Judge Aileen Cannon (Florida District Court judge mishandling the Trump documents case) or Matthew Kacsmaryk (East Texas judge famed for a short-lived ruling mifepristone is illegal) or similar Trump acolyte jurist would refuse to dismiss these baseless arrests without submitting the defendants to long costly trials.

Make no mistake: the Court’s majority ruling in Trump v. United States henceforth grants a president adopting blatantly illegal tactics almost full immunity; exceptions are complex and negligible. What now prevents an arrogant lawless president from taking such extreme and illegal action? Certainly not fear of impeachment from a Republican House and evenly divided Senate -- or perhaps worse after November. Nor can it any longer be the fear that some day he himself could be arrested and tried for deliberate abuse of authority in violation of numerous federal criminal statutes in doing so. The potential ramifications of Trump v. United States are beyond calculation.

I don’t usually recommend that non-attorney friends plow through Supreme Court opinions. They can indeed be tedious reading. But I strongly urge all of you to read the dissenting opinions of both Sonia Sotomayor and Ketanji Brown Jackson; the former text is a brilliant exegesis of American law and tradition explaining lucidly why presidents were never before meant to be exempt from criminal responsibility and the latter is nothing less than a work of judicial poetry explaining how important this doctrine is to the rule of law and democratic principles. Both should be studied in future civics classes. By contrast I believe you will find the John Roberts majority opinion granting breathtaking presidential immunity to be tedious and tendentious (and to me, thoroughly unconvincing) but I leave that to your judgments. The complete decision in Trump v. United States is freely available at https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf.

Of course Trump isn’t the first past president to have been what we would consider less than law-abiding, and many have pretty clearly trod close to the line. Abraham Lincoln arbitrarily suspended the writ of habeas corpus, allowing the military to arrest and detain suspected Confederate sympathizers without process of law and was rebuked posthumously by his Supreme Court for doing so in areas where the civil courts were in fact still fully functional. It is likely that Warren Harding knew full well of the extensive corruption riddling his administration and did nothing to stem it, and may possibly have profited personally. Truman was slapped down for seizing the striking steel mills.  Bill Clinton almost certainly crossed the line and indeed was impeached by the House for perjury in his attempted denials of illicit sexual encounters. Nixon and Watergate of course come to mind. But throughout we have always believed that the president was subject to the criminal laws of the land -- until this week. Even the impeachment clause of the Constitution, allowing removal from office for “treason, bribery, [or] other high crimes and misdemeanors”, now seems tainted since the president almost certainly cannot be found criminally guilty of any of those evils in a court of law. This is not to suggest that presidents other than Trump will seek to exact riches quid pro quo from the office; but they certainly will be freer to push closer than ever to the legal boundaries. I feel certain Trump v. United States is one of the most significant decisions in American history.

I apologize for leaving you with such a dismal perspective this month. I’ll try to find future topics about which liberal thinking may provide a more positive outlook.  In the meantime we are off to Portugal. No, I’m not fleeing the country -- at least not yet. It’s a brief jaunt to celebrate my wife’s birthday. In the meantime I hope all of us can enjoy the July 4th holiday and reflect on the liberal principles it symbolizes.

As always I’d be delighted to receive any feedback, including criticisms -- that’s what frank conversation should be all about -- and any suggestions for future discussions.  The main point, however, is to encourage civil conversation between you and your friends on what I see as today’s important social and political issues. Please do invite one or two friends to  join our slightly expanding circle.

Arne Werchick, after fifty years as a litigation attorney, pro tem judge, law writer and lecturer, former Presiding Arbitrator of the State Bar of California, and past president of the California Trial Lawyers Association, moved to Hawaii and lives with his wife Ruth and their rescue dog Topaz.  He can be contacted at liberalmind@werchick.com.