https://www.thenationalnews.com/opinion/2023/08/22/trump-legal-georgia/

He needs to convince jurors that he did not intend to disrupt the US constitutional system to keep his grip on power

The fourth indictment of former US president Donald Trump may have given rise to the ridiculous phenomenon, or at least media conceit, of “indictment fatigue,” but it adds invaluable new factors to the effort to hold him accountable for his failed effort to remain in power despite losing the 2020 election to Joe Biden.

The Fulton County district attorney, Fani Willis, has taken the opposite tack to that of federal prosecutor Jack Smith who indicted Mr Trump alone on four very limited charges, disconnected from the violence of the January 6 assault on Congress. Instead, Ms Willis has issued a sweeping, even sprawling, racketeering indictment – a total of 41 criminal counts in connection against 18 defendants, including Mr Trump – for a range of interconnected crimes designed to invalidate the election in Georgia, which was won by Mr Biden.

That means that Ms Willis’s state-level case is bound to take much longer than Mr Smith’s federal prosecution, and there is almost no chance her trial will begin before the 2024 election. But that’s where things start to get really interesting. If Mr Trump is re-elected, he could try to pardon himself, or simply order the Justice Department to abandon the prosecution.

There could be complications with both approaches, but a sitting president can surely eventually quash a federal indictment against himself. The same is true if another Republican wins, and pardons Mr Trump or orders the prosecution abandoned.

That would be the end of Mr Smith’s efforts to hold Mr Trump accountable. But Ms Willis would still be unencumbered in pursuing the same essential set of facts as applied to Georgia. Under the federal system, there is nothing Mr Trump or any other president can do to stop, or seriously interfere with, a state-level prosecution.

Moreover, no president can issue a pardon pursuant to state-level crimes, and even a Republican governor in Georgia would not be able to issue a pardon until five years after the sentence is served. The only real hope Mr Trump will have if Ms Willis is successful in the long run is for some extraordinary intervention to save him by the Supreme Court inventing novel constitutional claims, probably about federalism, or that a jury in Atlanta acquits him.

There is nothing to stop Mr Trump from running for and even winning the presidency despite these federal and state prosecutions, or from serving if he wins. So the US could be treated to the spectacle of a serving US president being criminally tried in a court in Georgia for seeking to stay in power despite the constitutional system he has twice vowed to “defend against all enemies, foreign and domestic.”

Moreover, while the federal court system has a solid ban on televising trials, state-level proceedings are routinely televised, so that Ms Willis will be overseeing the next major public inteerrogation into and explication of the failed coup and attempted insurrection since the House select committee wrapped up its work before the 2022 mid-terms. The nation, and much of the world, will undoubtedly be riveted by the spectacle, particularly if Mr Trump is in the White House while on trial in Fulton County, Georgia.

The latest polls indicate that Mr Trump remains solidly the front runner in the Republican primaries, including in the first-in-the-nation voting in the Iowa caucuses, where he apparently holds a commanding lead. Yet his reputation with the general public, and especially the crucial swing voters in a few toss-up states that will decide the outcome of the 2024 election, continues to take a severe beating.

He is refusing to take part in the first Republican debate this week, and attempting to seize the limelight with simultaneous counter-programming through a taped interview with the ousted former Fox News anchor and white nationalist rabble-rouser Tucker Carlson. This risks allowing other candidates to potentially upstage him on that night, and possibly unsettling his position as front runner. More importantly, perhaps, it gives Mr Biden an obvious rationale to decline to debate Mr Trump should they end up in what looks like an extremely likely rematch.

Mr Trump seems to understand the danger that the two prosecutions over his failed coup attempt pose for him, even if the rest of the Republican field now looks pathetically weak.

Between Mr Smith and Ms Willis, he is squeezed between a pair of legal perils that complement and reinforce each other. If Mr Smith has been too narrow, Ms Willis has been expansive. If Ms Willis’s case is too complex and lengthy, Mr Smith’s may be quick and simple. If a Republican victory in 2024, even by someone other than him, can save him from Mr Smith, Ms Willis is still there with a parallel prosecution on the same essential facts to which that victory provides no answer.

Everywhere he looks, he appears checkmated – unless he can convince jurors that he did not do, or at least intend to do, what every known piece of evidence suggests he manifestly did intend to do, which is to effectively end the US constitutional system to maintain his own personal political power.

Intellectuals and jurists, including many highly respected conservatives, are buzzing about a bombshell legal paper that persuasively argues that because Mr Trump indisputably sought to destroy the US constitutional system, he is by definition ineligible for the presidency. The authors of the study, William Baude and Michael Stokes Paulson, argue powerfully that this prohibition requires no further judicial or political action because it is “self-enforcing”.

Yet, actually enforcing such a prohibition would, in fact, require additional judicial and political action, even if the prohibition is theoretically self-enforcing. It would practically have to be enforced at least by the Supreme Court and, if Mr Trump were president and lost such a case, possibly by the armed forces – or at least part of them that sides with the law.

The bottom line is the grim reality that the only real way to defeat Mr Trump is at the ballot box. If his Republican opponents can’t do it, it’s going to be up to Mr Biden. He’s demonstrated his ability to do so before, and there is every reason to think that he is going to be able to do it again. If not, the US may have to brace itself for the spectacle of not only a former president being repeatedly indicted, but a sitting president on trial in Fulton County, Georgia.

https://www.thenationalnews.com/opinion/2023/08/15/ohio-abortion-roe-v-wade/

From abortion and corruption to Trump and Biden trials, courts have achieved undue and unhealthy preeminence.

US political realities are being dominated by the legal system and the judiciary to a virtually unprecedented degree. An activist, ultra-conservative and highly assertive Supreme Court is setting itself up as the premier national decision-making body. State Supreme Courts are also asserting extraordinary powers. And high-profile criminal cases may, more than anything else, define the next presidential election.

The Supreme Court’s reactionary Catholic majority is simultaneously pleasing and roiling both friends and foes. In particular, the 2022 Dobbs v Jackson Women’s Health Organisation ruling that stripped women of a 50-year-old constitutional right to reproductive choice early in a pregnancy is having a devastating effect on women seeking health care in much of the country. But it’s also proving even more of a political bombshell than many liberals hoped and some conservatives feared.

No one was sure if the initial outpouring of anger from women’s rights groups and others would have a sustained long-term political impact. After all, other issues could overtake reproductive rights for attention, or the politics of abortion access could find its own equilibrium in various states. But the issue has remained a top national political force.

It’s clear that the Supreme Court ruling is more profoundly at odds with majority American public opinion than initially understood, not only in liberal or moderate states, but in some highly conservative ones. That certainly helped the Democrats perform far better in the 2022 midterms than was widely expected. It seems likely to be a major asset to Democratic candidates in general, and President Joe Biden’s reelection bid in particular, in 2024.

Every time voters have been able to make their voices heard directly through state referenda, abortion access has won decisively. Nonetheless, conservative courts are working to maintain these restrictions despite the popular will. This is likely to maintain and exacerbate the sense of outrage.

In highly conservative Kentucky, voters overwhelmingly sided with abortion access. Nonetheless, the state Supreme Court, following the national court’s lead, ruled that two highly restrictive 2019 state laws, one banning nearly all abortions and the other banning all beyond six weeks of pregnancy, should remain in place for now, despite the will of most voters.

The right-wing state legislature in Ohio – which used to be reliably liberal but has become distinctly conservative in recent years – has taken note of this trend. It sought to prevent voters from amending the state constitution to protect reproductive rights in an upcoming November ballot initiative.

Even though Ohio conservatives have been campaigning against August referenda as bad for democracy because they typically produce low voter turnout in the lazy summer months, that’s exactly when they introduced a ballot initiative to require many more signatures to introduce a measure and a 60 per cent supermajority, rather than the existing simple majority, to amend the state constitution. 

They were obviously counting on the very qualities about an August vote against which they had complained so bitterly. And even though the referendum issue was only indirectly about reproductive rights, turnout was unusually large and the anti-choice measure was trounced by a massive 14 points. Given voting patterns from the past two elections, it’s obvious that plenty of Republicans and conservative voters joined liberals in rejecting the cynical ploy.

Ohio’s anti-choice laws are so strict that a pregnant 10-year-old rape victim had to flee to nearby Indiana to access healthcare that saved her from likely dire physical and personal consequences of giving birth at her age. Such cases are happening throughout the country, and the backlash is proving broad, deep and long-lasting. So, the Supreme Court has delivered individual women and the Republican Party massive, albeit very different, crises at the national level and in many states.

The Supreme Court itself is increasingly bedevilled by unprecedented corruption accusations, particularly regarding the longest-serving justice, Clarence Thomas. Hardly a week goes by without new revelations of gifts and benefits he has received from numerous wealthy “friends,” including underwriting his motorhome, purchasing and refurbishing his mother’s home, paying his ward’s tuition and lavish vacations – including 38 trips abroad, 34 private jet or helicopter rides, numerous yacht voyages, resort vacations and exclusive club memberships – among many others.

In November 2022, I wrote in these pages that the Supreme Court has become “the most corrupt, corrupted and corrupting” major national institution. The case for that has grown significantly stronger since then. A reasonable person would surely see this as public office being used for private gain.

From this “exalted” level of constitutional jurisprudence to more down and dirty criminal prosecutions, both sides in the likely rematch between Mr Biden and his predecessor, Donald Trump, are being haunted by criminal prosecutions.

An investigation of Mr Biden’s son, Hunter, begun during Mr Trump’s presidency over alleged tax and gun offences was continued by the Biden administration under the same federal prosecutor, David Weiss, to avoid accusations of favouritism.

A plea deal that probably would have spared him prison time was rejected by a judge and is now being renegotiated, although the charges might go to trial. Mr Weiss has been elevated to special counsel status, providing him additional independence. For President Biden, the danger is a constant drip-drip of news about his son’s legal travails – dovetailing with evidence-free Republican accusations that the two Bidens partnered in corruption schemes – could harm his reelection prospects.

It could even help offset the tsunami of criminal trials facing his likely opponent, Mr Trump. Though the charges against the younger Mr Biden are trivial in comparison to the over 100 already facing Mr Trump, much of the public may assume a false equivalence. Mr Trump has now been criminally indicted for a fourth time over an alleged plot to overturn the 2020 election results in Georgia. The prosecutor has introduced a sprawling racketeering case involving 18 defendants, the opposite approach to that of special counsel Jack Smith, who has charged Mr Trump alone to promote speed and simplicity.

Either way, unless Hunter Biden secures a stable plea agreement with his father’s Justice Department, his trial could attenuate public dismay with Mr Trump.

With the corruption-contaminated US Supreme Court and state-level equivalents deeply at odds with public sentiments, and criminal trials bedevilling the likely Republican nominee and, possibly, the son of his Democratic opponent, US courts find themselves inappropriately at the centre of the national political maelstrom. That’s unhealthy, alarming and bad for almost everyone.

https://agsiw.org/obstacles-from-all-sides-face-a-u-s-saudi-arabia-israel-grand-bargain/

Israel may at last be incapable of taking yes for an answer, even from the most influential Arab and Muslim country.

Beginning with a bombshell July 27 commentary by New York Timescolumnist Thomas L. Friedman, reports have continued to build that the White House is seriously working on developing a triangular grand bargain with Israel and Saudi Arabia that would dramatically reshape Middle Eastern strategic and political realities. Additional reporting by The Wall Street Journaland The Washington Post confirmed that recent trips to Saudi Arabia by Secretary of State Antony Blinken, National Security Advisor Jake Sullivan, and White House Middle East policy chief Brett McGurk involved detailed conversations about possible terms, with The Wall Street Journal reporting that U.S. officials expressed “cautious optimism” that details could be worked out “in the next nine to 12 months.”

However, despite that note of optimism, there is widespread skepticism regarding the prospects for such an agreement. In an August 3 AGSIW webinar, Friedman agreed that doubts are fully justified that an agreement along these lines can be completed at all, let alone before the White House is fully engulfed in President Joseph R. Biden Jr.’s reelection campaign. And the White House has been emphasizing that talks are at an early stage and not as advanced as some reports have implied. In return for normalizing relations with Israel, Saudi Arabia is seeking formal U.S. security guarantees, assistance with a civilian nuclear program, and access to more sophisticated U.S. weapons as well as significant concessions toward the Palestinians in the occupied territories. The obstacles to such a momentous and complex three-way deal are significant, despite the massive potential benefits to all three parties.

Obstacles on the Saudi Side

Saudi Arabia faces a much more complex and riskier set of calculations in normalizing relations with Israel than its Gulf Cooperation Council allies, the United Arab Emirates and Bahrain, did when they signed the Abraham Accords in September 2020. In addition to far more intricate and brittle domestic politics and a potential backlash at home against any such agreement, as the Abraham Accords have been growing more unpopular in the Arab world according to recent surveys, Riyadh must also carefully weigh possible negative impacts on its Arab regional and global Islamic leadership roles. Saudi Arabia’s adversaries, such as Iran and its network of armed militia groups in neighboring Arab countries, led by Hezbollah in Lebanon, or Salafist-jihadist groups like al-Qaeda and the Islamic State in the Iraq and the Levant, would likely take maximum advantage of the ensuing populist dismay among some Arabs and Muslims.

However, Saudi enthusiasm for a formal security relationship with the United States, with guarantees that might be stronger than those afforded major non-NATO allies but not fully equal to the commitments Washington offers its NATO partners, probably makes Saudi Arabia the least problematic of the three potential partners. Indeed, if the guarantees were strong and formal enough, it’s possible they would prove sufficient to overcome any lack of progress on the other two big Saudi asks of Washington on nuclear assistance and a more streamlined process of obtaining the most advanced U.S. weapons. Both issues present challenges on the U.S. side, but if security assurances are sufficiently robust, Saudi Arabia might prove flexible on nuclear support and access to sophisticated weaponry.

However, Saudi Arabia has made it clear in recent years that it will not normalize relations with Israel absent some significant, but unspecified, movement by the Israelis to bolster prospects for a two-state solution, such as strengthening the Palestinian Authority and expanding areas under its control, limiting settlement activity, or committing not to annex any additional occupied Palestinian lands. But such steps may be extremely difficult for the United States and Saudi Arabia to secure from the current Israeli government.

Obstacles on the U.S. Side

The biggest challenge in Washington probably resides in the Senate, which, depending on the scope, would likely need to approve the formal security partnership Saudi Arabia is seeking. Significant opposition can be expected from the progressive left among Democrats and the hard-right Republican faction, both of which harbor strong neo-isolationist impulses. Although approval will not be required by the House of Representatives, in which both tendencies are well represented, passage in that body would be far harder. However, the Senate remains dominated by both left- and right-wing foreign policy centrists, many, like Biden, harboring views shaped by the Cold War.

Presented with an agreement that greatly strengthens Washington’s hand in the Middle East and ties to Saudi Arabia, coupled with Riyadh normalizing relations with Israel, passage in the Senate is likely. Indeed, once senators have protected themselves politically by expressing some reservations, even a super-majority ought to be attainable. This is assuming that the Biden administration makes an all-out effort to rally Democratic support and makes the case that such an agreement would enormously strengthen the strategic posture of the United States and its partners and constitute a significant blow to Iran’s short-term and China’s long-term ambitions in the Middle East.

The bigger question in the Senate would probably center on support for a Saudi civilian nuclear program. Washington is used to demanding a “123” agreement, which goes far beyond the strictures of the nuclear nonproliferation treaty, to provide such support to nonnuclear powers. Critics of any deviation from this norm when it comes to Saudi Arabia will point out that the UAE agreed to such restrictions in 2009. However, this kind of arrangement makes little sense when it comes to Saudi nuclear development.

Uniquely among nonnuclear powers that seek to develop civilian nuclear energy production on a large scale for economic reasons, Saudi Arabia possesses and intends to mine its own uranium. Under a 123 process, it would have to essentially mine that uranium, export it to be processed into usable rods, reimport the rods for use in Saudi reactors, and then export the spent rods again for disposal. This wouldn’t be profitable and makes little sense from a Saudi perspective. Therefore, a modified arrangement involving oversight, but not the pinball-style movement of Saudi raw and enriched uranium or spent rods, is more reasonable. This might be a hard sell in the Senate because of the normative expectation of 123 agreements and suspicions about Saudi Arabia’s supposed nuclear weapons ambitions. Riyadh will therefore likely have to make significant concessions on oversight and other restrictions and commit never to develop its own nuclear weapons program as long as the security agreement with Washington remains in effect. Israel’s views on how far the United States should go to satisfy Saudi demands for help with its nuclear program are also likely to be pivotal.

A similar dynamic might play out in the Senate regarding Saudi access to advanced U.S. weapons. Recent objections have largely been based on the Yemen war, though Saudi Arabia is now seeking a viable exit from the country. Some senators will certainly register objections to Saudi Arabia’s human rights record and the 2018 assassination of Saudi journalist Jamal Khashoggi, but the logic of the deal, which rests so heavily on U.S.-Saudi security cooperation, means that the weapons component would likely be overwhelmingly approved by the Senate, especially with the strong support of Israel and its Jewish American and evangelical Christian backers.

Obstacles on the Israeli Side

By far the biggest obstacle lies on the Israeli side. The conundrum facing Washington and Riyadh is that such an agreement only makes sense, particularly from the U.S. perspective, in a triangular form. A bilateral U.S.-Saudi security treaty would be prohibitively difficult to achieve in Washington politically and wouldn’t provide the transformational, generationally locked-in strengthening of the U.S. strategic position that a trilateral agreement would.

In the abstract, Israel faces the lightest lift of all three. All it will likely be asked for is to come somewhat more in line with international law and United Nations Security Council resolutions regarding the occupied Palestinian territories. It won’t be expected to resolve the conflict with the Palestinians or end the occupation, merely to rein in settlement activity – which is prohibited by international law – or commit not to engage in additional unlawful annexation of territory. In addition, Israel, arguably, has the most to gain. This would be the biggest diplomatic breakthrough at least since the 1979 peace treaty with Egypt, and arguably in Israeli history since admission to the U.N. General Assembly, because the normalization of ties with Saudi Arabia would virtually guarantee the eventual diplomatic and commercial normalization of Israel’s relations with the broader Arab and Islamic worlds.

However, the current Israeli Cabinet, led by Prime Minister Benjamin Netanyahu and his largely pro-annexation Likud and several smaller extremist parties, seems unlikely to offer significant concessions on the occupation or toward Palestinians. Some senior Israeli officials have said that any potential moves on the occupation would be minimal and others have suggested that they are flatly out of the question. In a Wall Street Journal commentaryadvocating for a U.S.-Saudi security agreement similar to the one Washington maintains with South Korea, Israeli Foreign Minister Eli Cohen did not mention the Palestinians or the occupation at all.

Friedman has repeatedly emphasized that one of the main reasons he is enthusiastic about this initiative, though unpersuaded of its prospects, is that it would rupture the current extremist Israeli government as well as maintain dwindling prospects for a two-state agreement. It does seem impossible that the current coalition would be able to make whatever concessions Saudi Arabia would demand on the occupation or Palestinians. The hope is that Netanyahu would eventually form a new Cabinet, possibly in an alliance with centrist politician Benny Gantz.

However, Netanyahu still faces a corruption trial, and his current coalition is committed to so-called judicial reform initiatives that could protect him from potential imprisonment. Such judicial changes would almost certainly not be feasible with a new, more moderate Cabinet. He therefore faces personal as well as political considerations that might restrain such a maneuver even if he concludes that this agreement is viable, reasonable, and a vital national interest. Yet it is by no means certain an alternative coalition without the stridently extremist small parties would produce a government capable of making meaningful concessions to what many Israelis see as an adversary, the Palestinians, with no practical leverage over Israel. Would national morale in today’s Israel sustain any major restrictions on the country’s ambitions in much of the occupied West Bank? It’s questionable that there is any potential governing coalition in the Knesset that would be ready, able, and willing to do that, even to secure one of the most significant diplomatic achievements in the country’s history.

Yet, the security guarantees that Riyadh seeks and strategic benefits that Washington wants both practically depend on Israeli flexibility toward the Palestinians and occupation where none may exist under any practicable governing coalition. Such an agreement is not impossible because, as Friedman noted in his July 27 column, it would be massively beneficial to all three parties. These benefits provide the initiative significant momentum and explain the Biden administration’s bold leap into the dark grasping for it. The biggest question isn’t in Riyadh or Washington. It is undoubtedly in Israel, which may have reached the stage of annexationist ambitions leaving it, at long last, flatly incapable of taking yes for an answer, even from the most influential Arab and Muslim country.

https://www.thenationalnews.com/opinion/comment/2023/08/07/can-prosecutors-prove-trump-knowingly-lied/

Even if Trump has convinced himself he won the 2020 election, intentional ignorance of verified facts isn’t and must not be a viable legal defence.

“You’re too honest!” then-US president Donald Trump thundered at his vice president on January 1, 2021. Mike Pence had just flatly rebuffed demands that he abuse his ceremonial role in Congress on January 6 to unlawfully reject certified votes and, as he recently explained, “essentially overturn the election” of Joe Biden.

That stunning quote leaps out of the August 1 indictment by special prosecutor Jack Smith charging Mr Trump with a failed conspiracy against the US constitutional system.

Mr Trump and six unnamed (though easily identified) and as-yet unindicted co-conspirators stand accused of a complex multi-stage plot to keep him in power despite his election defeat. The indictment outlines four charges: two related to a broad conspiracy to defraud the US through numerous schemes to undo the election; attempting to disrupt the official proceeding in Congress on January 6 to confirm the results; and conspiring to defraud citizens of their voting rights by overturning that outcome.

The indictment suggests a mountain of additional and underlying evidence. It is summarised in a key sentence: “The purpose of the conspiracy was to overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the federal government function by which those results are collected, counted, and certified.”

When he was arraigned in court in Washington on Thursday, Mr Trump appeared more subdued than ever. He is reportedly angered and alarmed in private, although aggressively defiant and energetically fundraising from the new charges in public. He already faces criminal trials for fraudulent business records in Manhattan and stealing government documents in Florida.

The Trump camp is outraged that these once-unthinkable charges of a presidential effort to destroy the US constitutional order for personal political benefits have been brought in Washington, a notably liberal, overwhelmingly Democratic, 44 percent African-American, and distinctly Trump-unfriendly city.

Mr Smith was plainly thinking ahead. He filed the documents case in the Trump-friendly federal district of southern Florida, because, he explained to upset liberals, the alleged offences had occurred there. Neither side objected, despite the obvious advantage that gave to Mr Trump. The same logic now leads squarely to the new, and far more consequential, charges being filed in Washington where, again, the alleged offences took place.

Mr Trump’s attorneys will undoubtedly demand a change of venue, but Mr Smith may have outmanoeuvred them already, using the Florida documents case to secure a Washington venue for the coup plot trial.

There’s an additional symmetry. Federal judges are randomly assigned from pools in given districts. In the documents case, Mr Trump again drew one of his own nominees, the inexperienced but highly conservative Aileen Cannon. Many liberals feared that she would again issue bewildering rulings in his favour, though she hasn’t repeated her earlier biases yet.

Now Trump supporters are fuming that Tanya Chutkan – a highly experienced liberal judge and black female Jamaican immigrant (some might call that Mr Trump’s worst nightmare) – will preside over his Washington trial. A Barack Obama nominee, she has already handed down stiff sentences against January 6 insurrectionists.

It makes little sense to approve of Judge Cannon and a Florida venue in one case and object to Judge Chutkan and a Washington venue in another, when precisely the same logic and processes produced both results.

By shrewdly charging Mr Trump alone, Mr Smith has acted on the national imperative of holding the trial before the 2024 presidential election, with Mr Trump overwhelmingly favoured to be the Republican nominee. Voters have every right to observe this unprecedented trial of a former president who allegedly sought to overturn the constitutional system to remain in power, and learn the outcome, before deciding Mr Trump’s political fate.

Conversely, Mr Trump will certainly seek to delay proceedings as much as possible. With additional defendants, there would be little chance it could proceed rapidly. But with just one man on trial, if Judge Chutkan and Mr Smith both believe the public interest demands an outcome before the election, that could and should happen.

As with most non-violent white-collar cases, conviction might, but shouldn’t, hinge on Mr Trump’s state of mind at the time. His lawyers have signalled that their defence will centre on assertions he sincerely believed the election was stolen from him and was acting in good faith.

This defence is much weaker than many experts surmise.

There is ample evidence that Mr Trump privately understood that he lost. But even if he ultimately somehow managed to convince himself that he won, US law does not allow wilful ignorance to eliminate criminal intent.

His former attorney general, William Barr, has described how Mr Trump dismissed verified facts from his own officials, and sought any argument, no matter how outlandish, that the election was stolen. He privately described allegations by “co-conspirator 3”, attorney Sidney Powell, as sounding “crazy”, but promoted her crackpot theories in public.

US law provides a potent rebuttal to such a defence. If a defendant wilfully avoided learning of a fact, or deliberately convinced himself of an obvious falsehood despite known facts, criminal intent can be inferred.

His supporters filed more than 60 lawsuits challenging the election. All failed miserably. As “co-conspirator 1”, attorney Rudolph Giuliani, told an Arizona official: “We’ve got lots of theories. We just don’t have the evidence.” They didn’t and never will.

Mr Trump will also argue he was merely following the advice of lawyers (many of the unnamed co-conspirators). In fact, he rejected the advice of almost all legal officials within his administration and campaign attorneys to accept defeat, instead embracing the few who told him what he wanted to hear.

Mr Trump realised he lost. Even if he eventually convinced himself he won, intentional ignorance of objectively verified and known facts isn’t a viable defence. No belief justifies conspiracies to defraud the US, deprive citizens of voting rights, or obstruct an official proceeding. If prosecutors can show he did those things, even a good faith belief that the election was stolen can’t excuse them.

The whole saga is perfectly encapsulated in Mr Trump’s telling outburst at Mr Pence: “You’re too honest!” Too honest for what? Unfortunately for Mr Trump, this inescapable question answers itself.

https://www.thenationalnews.com/opinion/comment/2023/08/01/trump-is-leading-the-us-republican-front-despite-tim-scotts-popularity/

Tim Scott may be a rising star, but Trump’s infamous claim he could ‘shoot someone’ and still hold the base is evidently true.

It’s five months before voting begins in party primaries for the 2024 US presidential election, but both races are starting to look decidedly over. No remotely serious Democrat challenging US President Joe Biden, and former president Donald Trump appears increasingly unbeatable among Republicans. That’s great news for Mr Biden.

The plot has thickened somewhat lower down in Republican ranks, with Florida governor Ron DeSantis stumbling, dropping in important state polls including first-to-vote Iowa, and abandoned by major donors. Rising is South Carolina Senator Tim Scott, the only prominent African-American Republican.

Mr Scott has gained quiet support among establishment leaders and has proven a fundraising tornado, gathering over $21 million in this year’s second quarter. But a New York Times investigation revealed a whopping six million of those dollars were dispensed without meaningful reporting to recently established companies without any known history or leadership.

Between April 1 and June 30, his campaign paid a pop-up company with no online presence or other clients $4.3 million for vague services. The identity of its only purported representative, “Barry M Benjamin,” couldn’t be established by the Times or other media. Mr Benjamin was also the only reputed official of another company that received almost $1 million from the Scott campaign.

Mr Scott is using a practice pioneered by Mr Trump and his family members in 2016 and, especially, 2020, of funnelling donations into pop-up companies for practically unspecified services. The government watchdog organisation that is supposed to police campaign financing, the Federal Election Commission, seems permanently deadlocked in a partisan stalemate, and has been unable and unwilling to act against this growing form of corruption, especially on the Republican side (although Democrats will probably eventually follow suit). So, Mr Scott is likely to get away with it.

This level of wealthy and quiet establishment support reflects Mr Scott’s potential viability as a general election candidate. He’s almost tailor-made for the Republican Party of Ronald Reagan and George W Bush: a relentlessly upbeat and cheerful African-American campaigner who insists his own success is proof the US has overcome its racist past, relatively youthful at 57, a hard-core Christian fundamentalist, and a small-government conservative with libertarian leanings. But in 2023, such a candidate probably doesn’t stand a chance.

The biggest question is whether the rising star is really hoping to overtake Mr Trump, position himself for 2028 or, as most pundits argue, angle to be Mr Trump’s vice-presidential nominee.

Mr DeSantis is still polling second to Mr Trump nationally, but a recent New York Times/Siena College poll found the former president not only commanding a vast 37-point lead over the Florida governor, but also beating the combined field of all other candidates with ease. His support cuts across all demographic, ideological and regional groups, and appears to represent something like a consensus among Republican voters.

It’s almost too late for any credible Democrat to create a viable campaign to challenge Mr Biden. Given the recent poll numbers, which aren’t out of sync with most other surveys, Mr Trump may similarly have the Republican nomination virtually wrapped up.

Barring unforeseeable circumstances, 2023 could prove the earliest moment in modern US political history that the presidential nominees of both parties emerged in such a clearly obvious fashion, possibly with no real fight on either side.

Mr Trump’s legal woes could theoretically convince enough Republicans to abandon him, but why would they suddenly change their minds given what is already established? One possible, albeit unlikely, answer could lie in the superseding indictment filed by special prosecutor Jack Smith in the purloined documents case.

The new charges purportedly tell a stunning saga of bungled criminality. They massively raise the stakes in this looming trial set to begin in May next year, while introducing a new character and third defendant, Carlos De Oliveira, property manager at Mr Trump’s Florida hotel, to the drama.

According to the updated indictment, Mr De Oliveira worked closely with Mr Trump’s original co-defendant, Walt Nauta, in the former president’s crude attempts to hide purloined documents from the FBI and his own attorney, Evan Corcoran. The original indictment outlined how Mr Nauta allegedly moved boxes of documents around the property so Mr Trump could remove whatever he wanted to surreptitiously and unlawfully keep before a scheduled search by Mr Corcoran on June 2, 2022.

After his search, Mr Corcoran gave the FBI 38 classified documents along with an untruthful affidavit signed by another Trump attorney, Christina Bobb, falsely attesting that no additional documents remained un-surrendered.

The plot fell to pieces when, on June 23, prosecutors told Mr Trump’s attorneys they had learnt of extensive security camera footage they were preparing to subpoena.

Mr Trump and his two subordinates then attempted to get the footage, which they knew would record how and when documents were hidden from the FBI and Mr Corcoran, erased in an absurd series of slapstick misadventures and inane pratfalls.

The pilfered documents trial may well hinge on whether prosecutors can prove these new allegations. If so, they would incontrovertibly establish the most straightforward form of obstruction of justice imaginable: a conspiracy to destroy and hence conceal key evidence. If the government shows that “the boss” indeed ordered his minions to erase the footage, perhaps with Mr De Oliveira testifying against him, Mr Trump will surely be convicted of numerous serious felonies.

However, if the government fails, these explosive new allegations may become a textbook example of the backfiring perils of overcharging. If jurors conclude the government was overstretching on the most disturbing allegations, they may disregard the whole case and acquit everyone.

Astonishingly, it doesn’t appear that any of this alleged criminality is, or could be, capable of seriously eroding Mr Trump’s astonishing popularity among Republicans of literally every variety. When he boasted in 2016 that he could “shoot someone on Fifth Avenue” and not lose base supporters he was, amazingly enough, not exaggerating at all.

This may all be very bad for the country, but it’s very good for Mr Biden. Even his biggest worry, inflation, appears to be unexpectedly quickly coming under control. Mr Scott could give the ageing President a tough battle for the White House. Even the 44-year-old Mr DeSantis might pose a tricky challenge. But, despite Mr Trump’s overwhelming popularity among Republicans, and the number of Americans who will vote for whomever their party nominates, the almost equally elderly former president is looking increasingly like the ideal opponent for Mr Biden

https://www.thenationalnews.com/opinion/comment/2023/06/28/us-iran-nuclear-deal-talks/

An informal nuclear agreement will keep in check the likely drift towards war.

Over recent weeks it became increasingly evident that Iran has shifted its policy and once again became open to serious nuclear negotiations with the US. Reports suggest a limited informal or unwritten understanding is being developed through indirect negotiations in Oman. Despite the hand-wringing by critics on all sides, that’s definitely good news.

Confidence between the parties has grown such that, through carefully orchestrated leaks by diplomats, the basic outlines of a potential arrangement have been widely reported by the media.

The understandings begin with the long overdue release of three dual US-Iranian citizens imprisoned in Iran that Washington and much of the world consider hostages in exchange for the release of restricted Iranian funds. The US has allowed Iraq to pay Iran $3 billion for gas and electricity purchases, and South Korea $7 billion for Iranian oil already received. Both payments are limited to humanitarian purposes, specifically purchasing food and medicine. South Korean banks will receive indemnification assurances from the US Treasury Department that sanctions will not be triggered when they transfer these funds. The three prisoners may therefore be released in the near future.

Iran will reportedly limit uranium enrichment to 60 per cent, with 90 per cent considered weapons-grade. Although there are concerns Iran could potentially weaponise the enriched uranium it has already stockpiled, 60 is obviously far better than 90. In exchange, the Biden administration will commit to not imposing new sanctions on Tehran and to providing additional waivers on payments up to a total of about $2 billion, all targeted for humanitarian purposes.

Critics of the 2015 nuclear agreement between Iran and the Barack Obama administration, especially some staunch supporters of Israel, are outraged. The usual suspects have already been chanting their usual refrain of “pallets of cash, pallets of cash,” echoing Long John Silver’s parrot constant squawks of “pieces of eight, pieces of eight” in the classic novel, Treasure Island.

In truth, the Obama administration never delivered “pallets of cash” to Iran in return for the nuclear deal or anything else, and the Biden administration isn’t doing that either. It is releasing Iranian money that has been withheld as leverage precisely for purposes such as achieving a diplomatic breakthrough like this, no matter how limited.

Money, like oil, is fungible, so the restrictions to humanitarian purposes may be somewhat coy. Arguably, it still frees Iranian assets up for other uses, including military and nuclear ones. However, it is by no means certain that the Iranian regime would voluntarily be spending such funds on food and medicine. So, the payments could just as easily provide otherwise non-existent relief to innocents.

The crucial point is that such concessions are well worth the risks if such a limited, and even informal or unwritten, understanding can provide a real breakthrough. The revival of a functional dialogue between Washington and Tehran that begins to chip away at the mountainous edifice of distrust that has formed since the US withdrawal from the nuclear deal is absolutely indispensable.

That disastrous withdrawal is especially significant because these developments are unfolding in the run-up to the 2024 presidential election, which could well feature a rematch between Mr Biden – who served as Mr Obama’s vice president during the implementation of the defunct nuclear agreement – and his presidential predecessor Donald Trump, who scrapped the nuclear deal in favour of a campaign of “maximum pressure”.

Those sanctions perhaps limited Iran’s ability to fund the malignant activities of its network of armed gangs in neighbouring Arab countries, but they did nothing to mitigate its aggressive policies.

On the contrary, after about a year of trying to weather the sanctions, Tehran decided to strike back with its own campaign of “maximum resistance”, which involved a series of nefarious but deniable “grey zone” attacks against shipping and other targets in the Gulf. That culminated in the September 2019 attack on Saudi Aramco facilities that significantly reduced Saudi oil production for several days and rocked global petroleum markets. Meanwhile, Iran’s economy survived “maximum” sanctions, defanging what had long been a potent threat.

Republicans in Congress will be demanding oversight of anything discussed with Iran to prevent Mr Biden from achieving a crucial, albeit limited, diplomatic breakthrough and begin to repair the colossal damage done by Mr Trump’s error. They are counting on the Iran Nuclear Agreement Review Act of 2015, which provides a limited role for Congress in overseeing nuclear agreements with Iran.

However, the Act places no restrictions on presidential waivers of sanctions, does not require that Congress is informed of all details of every understanding, or even agreement, with Iran, does not provide a means for Congress to re-impose sanctions, and does not mandate a timeline or process for congressional review of whatever is submitted by the White House.

On the other hand, the president has the authority to conduct the foreign policy of the US, and both the language of the 2015 Act and the history of US policymaking and implementation suggest Mr Biden has great leeway when it comes to limited agreements and understandings with Iran, regardless of congressional heckling and grandstanding.

Mr Trump will claim that he had the situation entirely under control when he was president, especially after he withdrew from the nuclear agreement, and that Iran was about to fully capitulate to him. But that will be just another outrageous lie from a compulsive fabricator.

In reality, his policies infuriated Iran, but gained little for the US and its regional partners. Instead, they left a legacy of instability and peril. Hence the resumption of dialogue and diplomatic relations with Iran by key Gulf countries. Even when it comes to an apparently implacable adversary as Iran, international relations are very rarely reducible to a zero-sum equation.

Critics will be right that this potential limited understanding will resolve nothing. But it will come at an equally small cost. The real value lies beyond its specific terms. Successful indirect negotiations that produce reciprocal concessions on both sides are an indispensable prerequisite for taking the next step forward – if possible – with Iran regarding its nuclear programme and other egregious, unacceptable conduct.

Without a functional dialogue that can produce results, however limited, for both sides, the drift towards a ruinous and catastrophic war that will benefit no one will remain dangerously unchecked.

https://www.thenationalnews.com/opinion/comment/2023/07/25/trump-legal-cases/

It hardly constitutes an optimal context for a presidential victory.

Former US president Donald Trump still looms large enough that two national US calendars, which in the past have always run in parallel, seem set to collide as his gravitational pull slams them together. He faces a mounting set of legal and criminal reckonings and it’s almost impossible that all will be postponed. Many are set to intersect with the schedule of political primaries, party conventions and even the next presidential election.

Since Mr Trump faced his first criminal indictment in Manhattan in March on campaign finance and business records and tax falsification charges, he has appeared subdued and chastened in the dock. Unlike the civil defamation lawsuit, based on a sexual assault that a jury determined he indeed committed against writer E Jean Carroll, he won’t have the option of not attending these criminal trials.

Last week, a Trump-appointed Federal District Judge in southern Florida, Aileen Cannon, rebuffed his request for an indefinite postponement of his trial on 37 felony counts related to the alleged purloining, mishandling, concealing and unauthorised exposure of numerous highly sensitive government documents. Instead, she scheduled the trial for May 20, 2024.

While many complications may create delays, including the difficulty of getting attorneys cleared to review classified materials and finding a qualified jury, the Southern District of Florida is noted for its “rocket docket”, and may prove unsympathetic to his favourite legal tactic of endless delays.

Meanwhile, a judge in New York City has scheduled March 25 for Mr Trump’s state-level charges. As with the federal-level Florida case, he will be required to attend, while presumably his Republican rivals will be campaigning, fund-raising and debating.

By then the former president will already be embroiled in a second civil lawsuit brought by Ms Carroll on the same essential facts because he inexplicably repeated his accusations that she was lying about their alleged encounter after she won a resounding jury verdict last year. Shortly after, Mr Trump took to CNN to repeat his denials, claims that he didn’t know who she is (despite numerous photographs showing them together), and implications that she is unbalanced.

Interest in round two, which will surely result in yet another judgment against him, has been stoked by a stunning recent ruling by federal District Court Judge Lewis Kaplan. It held that, while the civil court jury ruled in favour of Ms Carroll on sexual assault and not rape charges under the exact meaning of the terms under New York State law, nonetheless their findings of fact establish that Mr Trump had indeed “raped” her “as many people commonly understand the word ‘rape’” .

It will not help Mr Trump in any elections whatsoever, even Republican primaries, that a federal judge has ruled it is legally accurate to describe him as an established rapist under the commonly understood meaning of the term. All of that is likely to be reinforced and disseminated by a disastrous second lawsuit he could have avoided by simply restraining his impulse to lash out at her again despite what had just happened in a court of law.

Criminal courts are almost certainly Mr Trump’s least preferred environment since few of his standard tactics work well there. Indeed, many of his closest legal associates now face disbarment precisely because they followed his preferred stratagems in legal proceedings, where such shenanigans are not well tolerated outside the white-collar civil proceedings that he has been used to.

Even then, New York State isn’t through with its least-favourite son.

New York’s attorney general, Letitia James, is suing Mr Trump, much of his family, and their private company on civil charges of systematically misrepresenting their assets by overvaluing them to investors and undervaluing them for tax purposes. Her ultimate goal is to not merely regain assets but to bar Mr Trump and his two older sons, Donald Jr and Eric, from ever running any businesses in the state again. That civil trial is scheduled to begin this October.

Arching over it all is special prosecutor Jack Smith’s apparent upcoming additional federal charges related to the January 6, 2021 insurrection and Mr Trump’s broader failed coup effort following President Joe Biden’s electoral victory in November 2020. Mr Trump recently received a so-called target letter from the Justice Department, reportedly advising him that he may well face charges of conspiracy to defraud the US, obstruction of an official proceeding, and, to the surprise of many, conspiracy to defraud people of their constitutional rights. There is little doubt another federal indictment will follow soon enough.

This, logically, seems to focus on the more sinister underlying efforts to overturn the election results – such as the plot to promote “fake electors” from Republican-controlled states that would secure victory for Mr Trump over Mr Biden despite the election outcome – than just the more dramatic mayhem of January 6.

Mr Trump also seems likely to face charges in Georgia on related state-level crimes, given that he was recorded pressuring senior officials to “find” exactly the number of non-existent votes he needed to defeat Mr Biden there.

These charges are merely looming, so there is no indication yet when expected additional trials might begin. But the first Republican primary debate is scheduled for August 23, kicking off the nomination campaign. Republican primary voting begins with the Iowa caucuses and New Hampshire primary in January 2024 and culminates in March. The Republican National Convention will be in Milwaukee from July 15-18, potentially right in the middle of the current front-runner’s varying criminal trials and other legal woes.

Only if he survives all that comes with his potential rematch with Mr Biden. Suffice it to say, the developing calendar smashing together Mr Trump’s political ambitions and legal exposure doesn’t seem like the optimal context for victory.

As the legal schedule now stands, his criminal trial in Florida may begin mere days after the end of the one in New York. It’s already taking its toll.

In the last quarter of fund-raising, most of Mr Trump’s donation dollars went not to his presidential campaign, as most donors no doubt expected, but to an affiliated “political action committee” that serves mainly to steer funds into paying his mounting legal bills.

Mr Trump’s rapidly filling, unavoidable criminal trial agenda could well hammer his presidential ambitions with a continuously running, self-authored anti-Trump TV ad campaign that will most likely only get more damaging as the 2024 presidential election approaches.

https://www.thenationalnews.com/opinion/comment/2023/07/20/it-is-americas-right-not-its-left-whose-views-on-the-israeli-occupation-have-changed/

Conservative claims that Joe Biden is implementing an outlandish new liberal conceit by labelling the Palestinian territories as ‘occupied’ are cynical and dishonest inversions of the truth,

The partisan schism over US policy towards Israel and the occupation that began in 1967 is solidifying in ways that should alarm both Israelis and Palestinians albeit for different reasons. Republicans are increasingly embracing the annexationism championed by Israeli Prime Minister Benjamin Netanyahu’s radical new cabinet, while US President Joe Biden’s administration is working to restore Washington’s commitment to peace.

Last week, an official editorial in The Wall Street Journal, an authoritative conservative establishment publication, fulminated against the Biden administration’s Middle East policies by relying on two glaring falsehoods.

It condemned Mr Biden’s opposition to proposed Israeli judicial “reforms” that would strip the judiciary of most powers over the government. It insisted that Mr Biden has been treating Israel’s government more harshly than he has the Iranian regime.

The absurdity of this claim is clear. A distinct coolness between Mr Netanyahu and Mr Biden is evident, but US support for Israel remains generous and robust. By contrast, the Biden administration has held firm against unreasonable Iranian demands in nuclear negotiations and maintained remarkably harsh sanctions and significantly ramped up military deterrence against Teheran.

The second glaring falsehood merits particular attention. The editorial claims that, under Mr Biden, “all of the West Bank and East Jerusalem is treated as occupied territory”. “This is now a liberal article of faith,” it insists.

These assertions – that it’s somehow incorrect to label the occupied Palestinian territories as “occupied”, and that doing so is a new and especially liberal conceit – invert reality. Shortly after the occupation began in 1967, it was labelled exactly that by the UN Security Council, including the US, and was reconfirmed countless times ever since. This makes Israel’s occupation a legal and diplomatic fact, not anyone’s opinion.

The suggestion is that liberals have adopted a weirdly anti-Israel stance by claiming Israel is an occupying power. Yet the opposite is true, as the editorial’s cynical authors are surely aware. In fact, it is the American right that has abandoned a longstanding bipartisan Washington consensus recognising the reality of the occupation and endorsing a two-state solution.

In 1980, then-president Ronald Reagan, a conservative hero, strongly supported Security Council resolutions condemning Israel’s de facto annexation of occupied East Jerusalem and declaring it null and void. Both presidents Bush, father and son, were also clear on the reality of occupation and the need for two states.

But in the 21st century, radical Christian fundamentalists support for the occupation and annexation steadily spread from the fringe to the mainstream in right-wing discourse.

The Donald Trump administration proved decisive. His Israel policy was run by three religiously conservative, pro-settlement Jewish Americans personally close to him: his son-in-law Jared Kushner, and two of his attorneys, Jason Greenblatt and David Friedman.

Mr Trump endorsed Israel’s annexation of the Golan Heights and issued an ambiguous statement recognising Israel’s sovereignty in Jerusalem but leaving it unclear whether he was making distinction between West Jerusalem and occupied East Jerusalem.

As US ambassador to Israel, Mr Friedman, the most radical of the group, was unusually empowered. During his tenure, everyone more senior at the State Department studiously avoided Palestine-Israel issues. He was, therefore, usually able to get his way.

He fought hard for the elimination of all references to the occupation or the occupied Palestinian territories in State Department documents, most notably the annual Country Reports on Human Rights Practices. From their outset, these crucial documents tracked Israel’s abuses and carefully distinguished Israel from the clearly identified “occupied territories”.

During Mr Friedman’s ambassadorship, State Department references to the occupation began to quickly disappear. The area designation in the annual reports was immediately switched from the traditional “Israel and the Occupied Territories” to “Israel, the West Bank and Gaza”. By 2018, all references to the occupation were eliminated. Under Mr Biden, Mr Trump’s area designation unfortunately persists, but the fact of occupation is clearly labelled and shot through the analysis of human rights realities in the occupied territories.

Mr Trump’s 2020 “Peace to Prosperity” proposal, overseen by Mr Kushner, was the key turning point. By encouraging Israel to annex 30 percent of the West Bank, including the Jordan Valley thereby surrounding any potential Palestinian mini-state within a greater Israel, the White House gave its blessing to the Republican right, especially radical fundamentalist Christians, to openly embrace occupation and annexation as legitimate and even desirable.

This otherwise ineffectual document succeeded in its unstated but actual primary mission of stretching the “Overton window” of political discourse on the occupied territories in Washington to include support for annexation. For the Republican right, there was no turning back. Cue editorials pretending that this radical transformation of conservative attitudes that has smashed a longstanding, bipartisan foreign policy consensus is merely the rejection of an outlandish new liberal “article of faith”.

Who else has recognised the reality of occupation? The Israeli military, repeatedly, going before Israeli courts to justify measures such as checkpoints and live-fire zones that are allowed to occupying powers under international law. The Israeli government, too, has frequently cited the occupation when convenient. But whenever it comes to settlements and other civilian projects that grossly transgress international human rights law – because the Palestinians and other occupied peoples have the right not to be colonised – Israel reverts to pretending there is no occupation after all.

What Israel has tried to create is a mobile, ever-shifting landscape where “Israel” legally exists wherever and whenever Israeli settler happens to be hunkering down, with or without permission of Israeli authorities, and everywhere else is an amorphous and undefined occupation, with the status of the land and its people to be determined at some future date. Or not.

Comparing the Biden administration’s Human Rights Reports with such conservative editorials and Republican presidential candidates’ scramble to outdo each other in support for Israel and annexation, it is clear that Mr Trump and his annexationist inner circle succeeded in demolishing the pre-existing bipartisan consensus in favour of peace.

With Mr Netanyahu’s judicial “reforms” set to severely undermine Israel’s “Jewish democratic” bona fides over Mr Biden’s strong objections, and the bitter partisan split developing over the occupation, the decades-old “special relationship” between the two countries seems ready to give way to a less “special”, more normal, status, at least with Democrats. That may dismay Israelis, but alarmingly for Palestinians, most Republicans now appear irreversibly pro-annexation.

https://www.thenationalnews.com/opinion/comment/2023/07/12/a-new-court-ruling-on-disinformation-pokes-another-hole-in-americas-constitution/

The US legal system is stuck in an ongoing pattern of undermining everything it’s meant to stand for.

The more than 200-year-old US constitutional system has been strained, almost to the breaking point, repeatedly in the 21st century. The latest instance is potential new limitations on co-operation between the government and corporations to limit online disinformation.

A Louisiana judge has ordered President Joe Biden’s administration, including public health and security agencies, not to engage social media companies with “the purpose of urging, encouraging, pressuring or inducing in any manner the removal, deletion, suppression or reduction of content containing protected free speech”.

That effectively bars the government from working with these platforms to try to create voluntary standards that protect the public from especially egregious and harmful disinformation. It privileges the free-speech rights of wild-eyed individuals, who could always still say whatever they want in their own media, at the expense of the same rights of private companies and the government itself, not to mention the interests of the general public and constitutional order.

The century began its ongoing pattern of stress-testing the creaking US Constitution with the fraught aftermath of the 2000 presidential election between George W Bush and Al Gore. The result was a virtual stalemate, with a result in Florida that was so close it became clear that no amount of contested recounts would produce a clear outcome either way. The election was ultimately decided by the Supreme Court, which voted strictly along partisan lines to halt any further recounts in the state, handing Mr Bush the presidency.

Although Mr Gore graciously accepted their ruling, not only did the electoral system appear badly broken (Mr Bush lost the popular vote), but the Court initiated a process of shattering self-inflicted delegitimisation which continues today. In addition to all justices voting in a manifestly partisan manner, they adopted stances on state authority that flatly contradicted well-established liberal and conservative positions on the issue, obviously in order to promote a politically advantageous outcome for their ideological allies.

The ensuing 15 years saw disasters ranging from plainly unconstitutional torture with impunity by the government following the 9/11 terrorist attacks to the 2010 “Citizens United” ruling that unleashed a tidal wave of unaccounted-for “dark money” from wealthy powerbrokers and corporations that flooded the US political system on all sides with uncontrolled, unprecedented and legally sanctioned corruption.

The arrival of Donald Trump and his “Make America Great Again” movement (which brought the Louisiana lawsuit) initiated a series of sustained challenges to the system from within that have neither brought down the US constitutional order nor been successfully suppressed. Indeed, Mr Trump remains the leading Republican candidate for the 2024 presidential nomination, and makes no secret of his intention to use his power to inflict “retribution” for his supporters against all of their perceived adversaries.

One of the earliest and most alarming challenges to the constitutional order posed by the Trump movement was the mobilisation of disinformation and conspiracy theories largely through social media. It developed into an unprecedented and sustained attack on the very notion of objective reality beyond mere assertion and opinion. Most disturbingly, this attack on the very concept of verifiable truth combined internal and external forces, both working, for their own reasons, to try to secure Mr Trump’s victory over Hillary Clinton.

Internally to the country, Mr Trump’s campaign and movement elevated fabrication, conspiracy theorizing, wild speculation and baseless allegations to a campaign specialty, if not an art form. Externally, a sustained and focused campaign by Russian intelligence, carefully monitored by a number of US government agencies and outlined in the final report by special counsel Robert Mueller, used many of the same tactics and tropes to promote Mr Trump and undermine confidence in both the US political system and the notion of objective reality.

The Kremlin thus sought to export its “nothing is true and everything is possible” domestic political atmosphere to the United States, with devastating effectiveness and consequences. Mr Trump continues to complain about “the Russia hoax,” and it’s true that definitive evidence linking his campaign to unlawful cooperation with Russian intelligence was never established. But the Russian use of disinformation on behalf of his candidacy and against the US constitutional system and political culture was all-too-real and exhaustively documented.

There is no telling how many of the more than 1.1 million Americans who have died from Covid-19 refused a vaccination that could have saved them. But the number may be in the hundreds of thousands. Even Mr Trump was booed by his own supporters when he once made the mistake of promoting vaccination at a rally.

Mr Trump may be out of office and off of Twitter, but the disinformation threat is by no means over. His allies in Congress have been using subpoena powers to investigate, intimidate and deter disinformation researchers at universities and think tanks in co-ordinated parallel to lawsuits seeking to restrict government communication with social media companies.

Those who embrace the spread of online falsehoods are naturally hostile to efforts to study and counter this malignancy. It’s no surprise that Representative Jim Jordan of Ohio, one of the leading promoters of the baseless conspiracy theory that the 2020 election was stolen from Mr Trump, is leading the attack on these researchers.

Meanwhile, undeterred new research shows that Russian and Chinese covert efforts sought to influence US public opinion reaction to criminal charges filed against Mr Trump. There is no doubt such forces, both inside and outside of the country, are preparing another onslaught against the 2024 elections, whether he is a candidate or not.

Meanwhile, undeterred new research shows that foreign powers sought to influence US public opinion reaction to criminal charges filed against Mr Trump. If this is true, then there is no reason to doubt that such forces, both inside and outside of the country, are preparing another onslaught against the 2024 elections, whether he is a candidate or not.

When courts try to prevent government public health and security agencies from helping social media companies voluntarily create safeguards in the public and national interest on manifestly spurious “free speech” grounds, it is another depressing reminder that the US body politic seems increasingly unable to overcome even thoroughly diagnosed malignant and metastasising cancers like online disinformation.

https://www.thenationalnews.com/opinion/comment/2023/07/05/affirmative-action-us-clarence-thomas/

Rather than being “colorblind,” the US Constitution has always been aggressively color-conscious, mostly to the extreme detriment of minority groups.

The US Supreme Court has issued another shocking but unsurprising ruling that arbitrarily dispenses with precedents and upends long-settled law at the expense of the historically disempowered. Last year, women were denied a 50-year-old individual right in America to early-term abortions. Now African American and Latino students will be deprived of “affirmative action” programmes considering race in university admissions.

The hypocrisy and absurdity were best illustrated by Justice Clarence Thomas’s passionate invocation of “our colourblind Constitution.” All six Republican-appointed Justices describe themselves as “originalists” or “textualists,” meaning that they seek to discover the “original” or the literal meaning of constitutional texts, respectively.

Originalism is unworkable not just because of radically transformed sociopolitical contexts, but because the framers of the Constitution frequently disagreed about the broader implications of their compromises. Each was willing to live with a passage based on their own interpretations. But the assumption there was a shared originary understanding of constitutional texts is demonstrably false.

Rigorous textual analysis is indispensable to jurisprudence, but “textualism” tends to reduce it to a crude game of definitions, etymologies, centuries of Anglo-American legal technicalities, and other questions having little to do with a decent outcome or rational interpretation of constitutional law under current circumstances. It often hints at the old BBC radio game My Word!, only without the charm and wit.

These methodologies are intended to transfix the meaning of constitutional law, insofar as possible, in bygone eras when black people were enslaved or excluded, women subordinated and disenfranchised, racism codified throughout society, and segregation, enforced by brutal lynching, the norm in many states.

The Constitution has had many anti-racist admirers, most notably Frederick Douglass and Martin Luther King, who saw in it potent correctives to such barbarism. But originalism and textualism are thinly-veiled efforts to slow, block, or now reverse much of the constitutional progress since 1954.

The ruling involved extraordinary colloquies between Mr Thomas and two liberal justices, Sonia Sotomayor and newcomer Ketanji Brown Jackson.

Ms Sotomayor outlined the undeniable endurance of structural and institutionalised racism and its profoundly negative effects for African Americans and Latinos. Mr Thomas countered that discrimination based on race can never be tolerated in any context. He posed as a champion of highly qualified Asian-American student applicants, arguing that Harvard’s admissions policies come primarily at their expense.

He accused Ms Jackson of viewing all aspects of life through an irreducible racial framework. She denied this and countered that his insistence that race is, or should be, irrelevant to law is so divorced from the social realities shaped by the Constitution it is effectively delusional.

Mr Thomas’s implacable hostility to affirmative-action is especially noteworthy because he is arguably the greatest-ever beneficiary of these programmes and ethos, and concomitant expectations of inclusivity. He attended Holy Cross College and Yale Law School based on affirmative action. He enjoyed a meteoric rise on the political right, and, at the tender age of just 33, headed his own federal agency, the Equal Employment Opportunity Commission. A mere 10 years later, following a contentious Senate committee hearing chaired by current US President Joe Biden, he was confirmed to the Supreme Court.

His spectacular career, especially given his upbringing amid poverty and segregation, is undeniably impressive, even inspiring. But it’s equally undeniable that, at every stage, and precisely because it coincided with the institutionalisation of affirmative action and the imperative of greater racial diversity in universities, corporations and government, his race played a significant role in his cascading triumphs. Unfortunately, he now appears mortified by this appropriate corrective, as if it were a badge of shame.

He was one of few Black conservatives available to run Ronald Reagan’s Equal Employment Opportunity Commission (EEOC), and then replace the first Black Supreme Court Justice, Thurgood Marshall.

As EEOC Chairman in 1983, Mr Thomas acknowledged: “God only knows where I would be today” without affirmative action policies, which he correctly called “critical to minorities and women in this society.” Now, he resembles a survivor in a lifeboat using an oar to beat back others attempting to clamber on.

Crucially, Mr Thomas’s “colourblind Constitution” dogma is especially unworkable from originalist or textualist perspectives. The original Constitution didn’t explicitly mention slavery, but plainly allowed it, defining slaves as “3/5 of a person” for purposes of congressional representation. In 1857, the Supreme Court ruled that no Black residents could be considered citizens and “had no rights which the white man was bound to respect.”

After constitutional amendments outlawing slavery and ensuring citizenship for following the Civil War, and a brief period of greater equality in the South known as “Reconstruction,” by 1896 the Supreme Court had promptly endorsed the growing practice of abusive racial segregation. Unequal separation by assumed race was consistently endorsed by the Court until the first legal cracks appeared in 1954. But the attempt at real redress only began in the mid-to late 1960s when policies such as affirmative action were developed.

It is impossible to argue that this project is complete, given the ongoing socio-economic gaps between “African Americans” and others, particularly those currently considered “White.” Instead, Mr Thomas and the court majority argue that any effort to redress centuries of rampant racial mistreatment with decades of limited succor is racist against everybody else.

The “colourblind Constitution” canard might just barely be plausible if US history began in 1965, although that would still involve a grossly unequal playing field. In fact, the Constitution has been aggressively colour-conscious throughout its history, mainly at the expense of minority groups. Consequently, Mr Thomas and his ilk are forced to rely on ahistorical myths to rationalise halting and reversing efforts to correct these monumental and profoundly lasting government-imposed wrongs. Many suggest income-based preferences instead, but that would probably intensify a troubling trend towards elite student bodies split mainly between the very rich and the very poor.

Meanwhile back at Harvard, over 40 per cent of “White” students were admitted because of family “legacies,” parental donations, ties to staff, or participation in, often boutique, sports teams rather than academic merit. Yet none will likely feel the neurotic sting of assumed inferiority that haunted Mr Thomas at Yale and until today. White preferences are normalised and normative in US society.

As the country celebrated its 247th birthday on Tuesday, this radical Supreme Court, wrapping itself in the disingenuous twaddle like “our colourblind Constitution” that informs this privilege and inequality, appears determined to preserve and protect as much of it as possible.

Happy birthday, America.