I would never want to play poker with MSNBC legal analyst Chuck Rosenberg.  Neither his facial expression nor tone/tempo of his voice ever change.  And he is always cordial when discussing the law with fellow attorneys.  That is why I was so surprised when we he vehemently rebuffed former deputy solicitor general Neal Katyal who proclaimed that today’s immunity ruling by the Supreme Court affirmed that a president could order Seal Team 6 to shoot a political opponent and not be charged with a crime.  Rosenburg shot back, “I don’t see anywhere in this opinion where it says that the president can order Team Seal 6 to assassinate an opponent.”

Chuck, the Constitution does not say the president has “the presumption of immunity” for official acts either, but as of 10:40 a.m., that is now the basis on which all presidential acts must be judged. So much for the originalist theory of interpreting the Founding Fathers’ intent. Equally important, the 6-3 majority declared, “Dividing official from unofficial conduct, courts may not inquire into President’s motives.”  I do not see that in the Constitution, either.

So Chuck, I am going to make this really personal so you can understand it.  A president of the United States orders Team Seal 6 to kill YOU, which they succeed in doing!  Isn’t the president commander-in-chief and can therefore deploy the military under Article II of the Constitution?  Furthermore, Article II requires the president, before taking office, to swear that he will “preserve, protect and defend the Constitution of the United States.” 

Your ghost believes you were a target because you had criticized the president on “Morning Joe” and demands the president be charged with murder.  However, the president invokes the language in Trump v. United States.  His lawyers argue YOU were a threat to the Constitution which their client swore to protect.  And therefore, the president ordered members of the military, as commander-in-chief, to eliminate that threat.   According to Chief Justice Roberts, who wrote the opinion, there is nothing you can do about it.

Even if there was recorded evidence, e.g. taped conservations in which  the president said, “I’m just sick and tired of that SOB Rosenberg calling me out on something,” those tapes would never be heard.  Why?  First, the Court says you cannot question the president’s motive that he responded to a constitutional threat.  Worse yet, the Court further declared that prosecutors cannot use evidence associated with an “official act.”  Therefore, all the president needs to do is claim that this discussion with a staff member was related to the deployment of the military which is authorized under Article II.

Rest in peace, Chuck.

POSTSCRIPT:  WE THE JUSTICES

Over the last five days, the Supreme Court, based on ideological 6-3 votes, has:

• expanded the authority of the president to act with impunity (Trump v. U.S.);
• undercut the Congressional and Executive authority under Articles I and II to write and implement the law (Ohio v. Environmental Protection Agency);
• declared that the storming of the Capitol on January 6, 2024, does not meet the definition of obstructing an official government action (Fischer v. U.S.).

There is no way to interpret these actions other than as a slap in the face of legal precedence and common sense.  If you ever thought the Supreme Court was the last bastion of hope for protection of the American form of government (as it did during Watergate) and our Constitution rights (reproductive choice and voting in the 1960s and 1970s), that era is history.

One can only hope the American people who share this view will use November 6, 2024, as their opportunity to give the Court, Leonard Leo and the Federalist Society the finger.  The only guardrail left to save the American experiment is us!

For what it’s worth.
Dr. ESP

Saturday morning, Washington Post political reporter Aaron Blake ranked 10 potential replacements if Joe Biden chooses to step aside.  I found Blake’s analysis to be quite compelling.  When it came to Vice-president Kamala Harris, he rightly pointed out the backlash from the Black community if she was passed over for someone else, giving Donald Trump more ammo to convince Black voters they are being used by the Democrats.  I also appreciated his including Michelle Obama on his list, calling her “everyone’s dream candidate.”  However, he was quick to acknowledge it would not happen because the former first lady has no interest in the job.

The rest of the list was replete with the usual suspects.  Governors Gavin Newsom (CA), Gretchen Witmer (MI), Jared Polis (CO), Andy Beshear (KY) and Josh Shapiro (PA).  Senators Amy Klobuchar (MN) and Raphael Warnock (GA).  Secretary of Transportation Pete Buttigieg.  The problem is that a final decision is needed before the Democratic National Convention begins on August 19, leaving little time for the usual winnowing down that leads to a consensus candidate.

At all costs, Democrats must avoid a contentious nomination process with little chance for healing before the general election.  So the question is not so much who should head the ticket, but how that person is selected.   Fortunately, there is a model for just such a situation.  In 1999, 30 Republican governors convened a meeting to determine who would challenge Al Gore, the likely Democratic nominee for president.  Each promised not to support any other candidate.  And we know what happened.  George W. Bush, with the full backing of 29 of his fellow state chief executives, won a narrow victory in the electoral college.

I am not recommending that Joe Biden call it a day.  That is best left to him, his family and close associates.  However, if he chooses that path, I suggest he do so on one condition.  Everyone interested in becoming the Democratic standard bearer must join him for a meeting in the White House cabinet room, at which time, he informs the attendees:

I have decided to withdraw as a candidate for president and to release my pledged delegates, if and only if, before we leave this room, we all agree on who will be the presidential and vice-presidential nominees.  You will then join me on the White House lawn to announce that decision and to offer your full support of the ticket.   

Now I know several of you had your eye on 2028.  That is where the two nominees have to give a little.  Even if he or she wins in 2024, they must agree they are not guaranteed re-nomination in 2028.   They will have to earn it.  If any of you think we need a change, go for it

That’s the deal, Jack. 

What’s more, this could be another chance for Democrats to again demonstrate the difference within their ranks and the cultists who dominate the MAGA party.  If Donald Trump had as bad a night as Biden, does anyone honestly believe he would have admitted it?  Or he would be sitting down this morning with his wife and children this morning (assuming he could find them) to discuss his future.  But it is not just about Joe.  The above scenario also requires that all but two aspirants to the presidency and vice-presidency put aside their personal ambitions for the national interest.  Such a gesture would further solidify the dichotomy that the leaders of one party are willing to put country before self and one that worships a man who was hijacked his party for personal gratification.

The election with a new ticket could be waged  much like Lyndon Johnson’s 1964 campaign, a tribute to a “fallen” president and a call to finish the mission he started.  On women’s rights.  On climate change.  On income and wealth inequality.  On gun safety.  On the need for a Supreme Court the founding fathers envisioned.  On global democracy.  Joe was never good at touting his own accomplishments.  But his successor can both remind voters of what has been accomplished and honor Biden by call the party platform his “unfinished” agenda.

Nor does Biden now have the oratorical skills to prosecute the case against Donald Trump’s lies.  Imagine a national convention dedicated to dismantling Trump’s version of American in which speaker after speaker across the party’s spectrum parses the fire hose of lies presented during the July MAGA convention.  The stage is framed by a banner which simply says, “The Honest Truth.”  A convention which begins with a film that answers the question, “Are better off today than you were four years ago?”  Images that remind voters of what America looked like on January 19, 2021 and how our country is now the envy of the free world.  After which, the convention chair introduces the outgoing president, giving delegates a chance to thank him for his service and what he has accomplished in just four years.

Even if Biden stays in the race, the opportunity is the same.  With just two and a half months between the convention and election day, Democrats will have the national spotlight for three days.  All they need to do is make the most of it.

For what it’s worth.
Dr. ESP

While waiting for Season 3 of “The Bear,” I watched the “Hit Man,” a based on true story movie about a college professor who moonlights as an undercover agent for the New Orleans Police Department.  His job?  Disguised as a murder for hire professional, Gary Johnson (played by Glenn Powell) meets with potential clients, records their conversations and accepts payment for eliminating one their adversaries.  To document the efficacy of his work, following each encounter, the client is seen posing for his or her mug shot.  I give this innovative, well-acted and equally well-directed film a huge thumbs up. (Available on Netflix)

I wish I could say the same for the six justices on the Supreme Court who yesterday decided that the difference between a crime and a thank you is the timing of the payment.  In the case of Snyder v. United States, James E. Snyder,  the former mayor of Portage, Indiana, received a check for $13,000 from truck manufacturer Peterbilt in 2014, months after the city purchased two trash trucks from the company’s local affiliate for $1.1 million. When charged under 18 USC §666, Snyder argued the law applied only to bribes.  Therefore, Peterbilt’s payment after the purchase was a legal gratuity.

Writing on behalf of the 6-3 majority, Justice Brett Kavanaugh did not hesitate to accept Snyder’s argument lock, bump-stock and barrel, beginning his opinion:

The question in this case is whether 18 U. S. C. §666(a)(1)(B) makes it a federal crime for state and local officials to accept gratuities for their past official acts. The answer is no.

Among the reasons for his opinion, Kavanaugh writes:

…the dividing line between §201(b)’s bribery provision and §201(c)’s gratuities provision is that bribery requires that the official have a corrupt state of mind and accept (or agree to accept) the payment intending to be influenced in the official act.

Is anyone surprised that a judicial body which avoids accountability for any appearance of corruption would not use common sense when asked what constitutes “corrupt state of mind?”  What was Mayor Snyder’s state of mind when he was handed the personal check for $13,000 check?  Did he once consider, “If Peterbilt can afford to give me such a generous gratuity, maybe we paid too much for the two trucks, and the proper response would be to deposit the check in the city treasury?”  And did he honestly believe this gratuity would not influence his decision the next time the city needed trucks?

Which brings me back to “hit man” Gary Johnson?  Suppose he was a real hit man willingly accepting payment to off a client’s adversary.  As the client pulls out an envelop and slides it under the table.  Johnson immediately objects, “Not now. That would be corrupt.  Give me the money after I’ve completed the assignment.  Then we can call it a gratuity.”

Of course, Johnson would still be charged with murder under a different statute, but it least he would not be guilty of corruption.  So let’s take another example.  Suppose the son-in-law of a former president. serving as a White House senior advisor, facilitates the sale of military equipment to a foreign government.  After the son-in-law is no longer a government official, the sovereign fund of that foreign government invests $2 billion dollars in his company Affinity Partners.  According to Kavanaugh and his fellow justices, “Nothing to see here.  No quid pro quo.  It’s just a gratuity.”

Equally disturbing is the fact that Kavanaugh invokes the #1 MAGA defense when it comes to criminal laws, weaponization of the Department of Justice. He channels one of Donald Trump’s greatest hits, “If they succeed in prosecuting me, you’re next.”  Kavanaugh writes:

The Government asks this Court to adopt an interpretation of §666 that would radically upend gratuities rules and turn §666 into a vague and unfair trap for 19 million state and local officials. We decline to do so.

I can see it now.  FBI agents stationed outside classrooms for the chance to entrap a teacher accepting an apple from a student.  Or patrolling neighborhoods during the winter holidays in search of residents offering Starbucks gift cards to their meter reader or garbage collectors.

While Kavanaugh twisted himself into a pretzel to come up with six reasons why 18 USC §666 does not mean what it clearly says, Justice Ketanji Brown Jackson parsed the law to explain why Kavanaugh’s argument was wrong.  She reminded the majority:

Ignoring the plain text of §666—which, again, expressly targets officials who “corruptly” solicit, accept, or agree to accept payments “intending to be influenced or rewarded”—the Court concludes that the statute does not criminalize gratuities at all.

What is a gratuity other than a REWARD for past service?  And by its very definition, the timing of the reward is irrelevant.

When you vote for president this November, remember that the next occupant of the Oval Office may have any number of appointments to the Supreme Court.  You will decide whether those nominees rely on common sense when interpreting the law or on their ability to make word salad out out of constitutional and statutory language.

For what it’s worth.
Dr. ESP

This morning former Republican congressman Adam Kinzinger posted the following on the social media site formerly know as Twitter.

As a proud conservative, I’ve always put  America’s Democracy and our Constitution above all else.  And today, as a proud conservative, I am endorsing Joe Biden for reelection!

While I certainly don’t agree with President Biden on everything, and I never thought I’d be endorsing a Democrat for president, I know that he will always protect the very thing that makes America the best country in the world: our democracy.

The Huffington Post suggested the timing was no accident.  “Kinzinger’s announcement comes on the eve of the opening presidential debate and gives Biden an example he can raise Thursday night of a well-known Republican supporting him over Trump. ”  Kinzinger joins a growing list of former Republican leaders, including  representatives Susan Molinari (NY), David Jolly (FL) and Charles Dent (PA), governors John Kasich (OH) and Christine Todd Whitman (NJ) and former RNC chairman Michael Steele, who have endorsed the presumptive Democratic nominee.

Questions about the reason for their conversion are usually followed by inquiries related to the future of the Republican party.  Premiere among them is, “Do you still have hope that the GOP can ever shed the influence of Donald Trump and the extreme MAGA wing of the party?”  Oh, for the good old days of Lincoln, bipartisan camaraderie (Reagan and Tip O’Neill) and presidential nominees slightly to the right of center.

As an over-educated political scientist and practitioner of party politics for most of my life, I find it strange Democrats do not share the same longing for their “good old days.”  With the exception of the 80th and 83rd Congress (1947-49 and 1953-55), Democrats controlled both houses of Congress for 50 years (1931-1981).  And not by small margins.  I hesitate to call these “the good old days.”  It was the “best of times” from a macro national perspective.  Americans survived the Great Depression, defeated fascism in Europe and the Pacific, expanded higher education and housing opportunities through the GI bill, rocketed to the moon and passed landmark legislation like the Civil Rights and Voting Rights Acts, Social Security and Medicare.  This progressive agenda continued even when Republicans occupied the Oval Office as evidenced by the creation of the Environmental Protection Agency during the Nixon administration.

However, we must not forget that for some Americans, particularly minorities and women, much of this era was “the worst of times.”  Segregation and the glass ceiling presented seemingly impenetrable barriers for these folks to reach their full potential.  Even de jure responses such as civil rights legislation, the Fair Housing Act and Title IX did not immediately resolve the de facto inequities.

In his book Jumpstart Your Brain, Doug Hall explains how stimulus/response is the key to creative solutions. Observations and experiences are triggers which open new avenues of exploration.  This morning, Adam Kinzinger was the trigger that opened my eyes to why our country is so divided and why partisanship is a barrier to reasonable political leadership and civil discourse.  More importantly, now may be the most opportune time to take a leap of faith to reverse this corrosive segmentation of American society.

I suggest it is time for the Democratic Party to remember why it it was so successful during that 50-year run.  It was the party of economic opportunity during the depression.  It was the party of global democracy in World War II.  It was the party of the middle class in the post-war era.  And it was the party of individual rights in the 1960s.  And it never faltered from its support for the Constitution and the rule of law.   The best example may be Franklin Roosevelt’s 1937 attempt to add seats to the Supreme Court to counteract the justices who questioned the constitutionality of some New Deal programs.  Although Democrats controlled the Senate 74-22, Roosevelt’s plan died in the Democratic dominated Judiciary Committee which saw the scheme as nothing more than a power grab.

You know what it did NOT have?  Ideological purity. Democratic Senators in the 73rd Congress (1933-35) ranged from liberal Robert Wagner (NY) to conservative Richard Russell (GA).  The ideological spread was no different in the 96th Congress (1979-1981) with the likes of Ted Kennedy (MA) and Russell Long (LA).  Legislating within the Democratic conference was certainly messy, but compromise was the order of the day and passage was usually ensured.

So let’s stop worrying about whether moderate Republicans can ever retake control of the GOP.  It is now the MAGA party, and if Democrats focus on a pro-democracy, pro-Constitution strategy, could be doomed to minority status for decades to come.  If, and only if, Joe Biden, Kamala Harris, Chuck Schumer and Hakeem Jeffries reach out to disaffected Republicans the likes of Adam Kinzinger, Liz Cheney and Mitch Romney.  And invite them to run as conservative Democrats with the full backing of the Democratic National Committee. 

Why would either side do it? Imagine the following conversation between the Democratic leadership and potential GOP recruits.

Nobody thought we could ever pass the Affordable Care Act.  But we had 60 Democratic senators.  And we had hoped some of  you would join us.  So we dropped single payer and other provisions that even some of our own members objected to.  And we got the 60 votes and, [Biden jumps in] you must admit, I was right.  It was a big f***ing deal. 

We both know immigration reform is long overdue.  If we had 60 members today, the compromise we agreed to with Jim Lankford would be the law of the land.  The same is true for sensible gun safety legislation.  The environment. Saving Social Security.  Reproductive choice.  You’ve seen the polls.  These are 70/30 or 80/20 issues.  Voters want us to do something.  Conservatives and liberals can disagree on approaches and some of the details, but we can work that out.  What we cannot abide is having extremists blocking any chance of passage, promising to primary anyone who is willing to compromise.

The only thing that is not negotiable is loyalty to the Constitution and the rule of law.  But we never believed that was an issue for you.  We think you’ll find a home in the New Democratic Party where your loyalty will be to your constituents, not a cult leader, and you can speak your mind without fear of retribution.

I know many of you think this is a pipedream.  And it may be.  But it has a better chance of succeeding than MAGA world reverting to the party of Lincoln.

For what it’s worth.
Dr. ESP

The response outside the Supreme Court to the June 13, 2024 decision in the case of FDA v. Alliance for Hippocratic Medicine was more a “phew” than a “hooray.”  The reason being, rather than ruling on the merits, the court dismissed the plaintiffs’ attempt to nullify FDA approval of the abortion drug mifepristone on a technicality, lack of standing.  Speaking for the Court, Justice Brett Kavanaugh, acknowledging the plaintiffs “have sincere legal, moral, ideological, and policy objections to to elective abortion,” wrote:

But under Article III of the Constitution, those kinds of objections alone do not establish a justiciable case or controversy in federal court.  Here, the plaintiffs have failed to demonstrate that FDA’s relaxed regulatory requirements likely would cause them to suffer an injury in fact. For that reason, the federal courts are the wrong forum for addressing the plaintiffs’ concerns about FDA’s actions. The plaintiffs may present their concerns and objections to the President and FDA in the regulatory process, or to Congress and the President in the legislative process.

Standing in court requires evidence of actual harm.  And while the plaintiffs argued that the availability of abortion drugs such as mifepristone might weigh heavily on their consciences, Kavanaugh said, in not so many words, “No one is forcing you to recommend it for your patients.”

Kavanaugh, in the above language, wittingly or unwittingly, exposed an example of the massive conspiracy MAGA world calls the “deep state” dating back to the drafting of the Constitution and applied specifically to FDA with the passage of the Federal Food and Drugs Act in 1906.  According to FDA historian John P. Swann, the 1906 legislation created the FDA to replace the Bureau of Chemistry in the Department of Agriculture and authorized the new agency to (1) go into plants where food and drugs were produced and (2) regulate the labeling on such products.  However, it did not require pre-commerce approval for drugs.

Pre-market approval of drugs was authorized by the Congress in 1938, following over 100 deaths related to the production and sale of elixir sulfanilamide which contained a toxic ingredient.  With the sole focus on safety, the 1938 amendments did not address the efficacy of a marketed drug.

In response to the 1962 deaths and infant deformities connected to the use of thalidomide, Congress passed the Kefauver-Harris Drug Act which expanded FDA’s regulatory authority related to the efficacy of a drug before it could be marketed in the United States.  In subsequent years, Congress further expanded FDA’s regulatory authority including, but not limited to, “orphan” drugs which were used to treat rare diseases, requirements to inform users of the specific dangers and side effects of a medication and the ability to charge drug manufacturers fees to cover the the agency’s cost of drug evaluations.

One point of contention in the mifepristone case was the FDA’s use of REMS (Risk Evaluation and Mitigation Strategies) to make the the drug available initially and later to expand its use up to 10 weeks following conception.  REMS was authorized by Congress in 2007 amendments to the FDA Act.  REMS purpose, according to the Center for Health Policy at the Brookings Institute, “…is to ensure that the benefits of a given medical product outweigh the associated risks.”

To recap, four private organizations argued before the Supreme Court that a cabal of bureaucrats in the FDA have exceeded their authority by making a drug available to the general public in violation of the Constitution.  Where could they get such an idea?  Maybe from former House Speaker Newt Gingrich.  In a March 6, 2017 interview with New York Times reporter Julie Davis, Gingrich shared the following.

What President Trump is discovering is that he has a huge, huge problem underneath him, and I think he’s shocked that the system is as hostile as it is.  We’re up against a permanent bureaucratic structure defending itself and quite willing to break the law to do so.

If that is the case, why didn’t Donald Trump direct the Department of Justice to investigate, indict, convict and jail these renegade conspirators?  Perhaps because the defendants would include the Founding Fathers who in Article I, Section 8 of the Constitution granted Congress the power “to regulate Commerce with foreign Nations, and among the several states, and with Indian Tribes.”  And while the Supreme Court denied Congress could wholesale delegate this regulatory authority, it authorized delegation by legislation for specific activities.  And then there are all those Senators and Representatives who, over time, authorized FDA and added specific regulatory authorities to its portfolio.  And finally, all the staff at the FDA who followed the Administrative Procedure Act to promulgate and implement the regulations assuring public input.  To paraphrase Amity Island sheriff Martin Brody in Jaws, “We’re going to need a bigger courtroom!”

As if that was not enough proof, let us not forget the latest affirmation that the so-called “deep state” is grounded in the Constitution, using plain English even Clarence Thomas and Samuel Alito can understand.  Reviewed and affirmed by the Supreme Court.  And authorized by the ELECTED representatives of the American people.  And last week blessed by Justice Kavanaugh, who suggested the plaintiffs in the mifepristone case can address their grievance through the appropriate regulatory and legislative processes.

“Deep state,” consider yourself exposed.

For what it’s worth.
Dr. ESP