Greg Abbott Laments That Texas Can’t Shoot Migrants Because Murder Is Illegal
Nikki McCann Ramirez – January 11, 2024
Texas Governor Greg Abbott lamented that Texas can’t shoot migrants trying to cross the border illegally because “the Biden administration would charge us with murder.”
On Jan. 5, Abbott appeared on the radio show of former NRA spokesperson Dana Loesch. During a discussion of Texas’ efforts to curb the illegal entry of migrants through the southern border, Loesch asked “what can be done, like right up to the line, where maybe they would come and say, ‘Governor you’re breaking the law we’re going to arrest you,’” in terms of border enforcement.
Abbott responded that his administration is “deploying every tool and strategy that we possibly can,” to stem the flow of immigration, including building a border wall, placing barriers in the Rio Grande, and passing legislation making illegal border crossings a state crime.
“The only thing that we’re not doing is we’re not shooting people who come across the border because of course, the Biden administration would charge us with murder,” Abbott added. The governor’s comments were resurfaced on Thursday by Heartland Signal.
Earlier this month, the Biden administration sued Texas over a law signed by Abbott that would grant local law enforcement the authority to arrest migrants and allow judges to order deportations. The administration argues that the law goes against constitutional mandates granting the federal government authority over border enforcement.
Shooting unarmed civilians attempting to cross the border would absolutely constitute murder. It would also violate a myriad of state, federal, and international laws protecting migrants and asylum seekers.
That potential retaliation from the Biden administration is the only thing Abbott referenced as a reason not to shoot migrants signals how extreme the Republican position on immigration has become. In 2019 The New York Times reported that former President Donald Trump privately suggested in a meeting that border patrol be allowed to shoot migrants in the legs to slow them down. As reported by Rolling Stone in June, former Trump immigration adviser Stephen Miller once reportedly suggested the use of predator drones to blow up migrant boats.
Trump has also floated granting himself widespread executive powers if reelected in November to completely reshape the American immigration landscape. The former president and his allies prepared to conduct mass deportations and construct a network of detainment camps to facilitate their rounding up of undocumented people. It’s safe to say that if Trump wins the White House in 2024, the already thin barriers preventing more extreme brutality against migrants may crumble very quickly.
Trump’s Boldest Argument Yet: Immunity From Prosecution for Assassinations
By Adam Liptak, Reporting from Washington – January 10, 2023
A lawyer for the former president said he would be immune from prosecution for the murder of a political rival while in office unless he was first impeached and convicted in Congress.
Former President Donald J. Trump has long sought expansive immunity. Credit…Doug Mills/The New York Times
Eight years ago, just before the Iowa caucuses, Donald J. Trump crowed about his invulnerability.
“I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, OK?” he said. “It’s, like, incredible.”
On Tuesday, at a federal appeals court argument held the week before this year’s caucuses, a lawyer for Mr. Trump said that the Constitution basically states the same thing.
It took a few questions from Judge Florence Y. Pan to pin down the lawyer, D. John Sauer. But in the end he made the jaw-dropping claim that former presidents are absolutely immune from prosecution even for murders they ordered while in office.
“I asked you a yes-or-no question,” Judge Pan said. “Could a president who ordered SEAL Team 6 to assassinate a political rival, who was not impeached, would he be subject to criminal prosecution?”
Mr. Sauer said his answer was a “qualified yes,” by which he meant no. He explained that prosecution would only be permitted if the president were first impeached by the House and convicted by the Senate.
Impeachments of presidents are rare: There have been four in the history of the Republic, two of them of Mr. Trump. The number of convictions, which require a two-thirds majority of the Senate: zero.
A member of Congress might be reluctant, in any event, to vote against a president prepared to order the military to murder his opponents.
Mr. Sauer’s answer instantly entered the annals of candid concessions that helped doom an argument. It was reminiscent of a government lawyer’s statement, at the first argument in the Citizens United campaign finance case, in 2009, that Congress could in theory ban books urging the election of political candidates.
“That’s pretty incredible,” Justice Samuel A. Alito Jr. said at the time. When the case was reargued, Solicitor General Elena Kagan, now a member of the Supreme Court, modified the government’s position but lost anyway, by a 5-to-4 vote.
Mr. Sauer’s statement also called to mind a more direct echo, from a 2019 federal appeals court argument over whether Mr. Trump could block state prosecutors from obtaining his tax and business records. He maintained that he was immune not only from prosecution but also from criminal investigation so long as he was president.
At that time, Judge Denny Chin pressed William S. Consovoy, a lawyer for Mr. Trump, asking about his client’s statement that he could shoot someone on Fifth Avenue without losing political support.
“Local authorities couldn’t investigate?” Judge Chin asked, adding: “Nothing could be done? That’s your position?”
“That is correct,” said Mr. Consovoy, who died last year. “That is correct.”
This headline followed: “If Trump Shoots Someone on 5th Ave., Does He Have Immunity? His Lawyer Says Yes.”
Mr. Trump’s general strategy is not new. He has long sought expansive immunity, and he has frequently invoked impeachment as the primary remedy for presidential misconduct.
But Mr. Sauer’s reading on Tuesday of what lawyers call the impeachment judgment clause did not impress legal scholars.
The provision says: “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: But the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”
It is plain that “the party convicted” in the Senate can still face criminal prosecution. But Mr. Sauer argued that the clause implied two other things: that conviction in the Senate is always required before a criminal prosecution and that acquittal in the Senate bars such prosecution.
Abner S. Greene, a law professor at Fordham University, said that “the impeachment arguments are sure losers — both that the president may be criminally prosecuted only if impeached and convicted, and that the president may not be criminally prosecuted if impeached and not convicted.”
Mr. Trump was acquitted at his second impeachment trial when only 57 senators voted against him, 10 shy of the two-thirds majority needed to convict.
There are reasons to question whether that acquittal bars criminal prosecution. First, Mr. Trump was impeached for inciting insurrection, a claim notably absent from the federal indictment in the election-interference case.
Second, many senators voted to acquit Mr. Trump at the impeachment trial at least in part because he was no longer in office and so, they said, was not subject to the Senate’s jurisdiction.
Third, Mr. Trump’s own lawyers argued at the impeachment trial that the proper response to their client’s conduct was criminal prosecution.
Given Mr. Sauer’s answer on assassination and the gaps in his argument grounded in the impeachment judgment clause, Mr. Trump is likely to lose before the three-judge panel. But he has achieved a significant interim victory. Proceedings in the trial court have been suspended during the appeal and the scheduled start of the trial, on March 4, may slip.
Should Mr. Trump lose before the three-judge panel, he may ask the full appeals court, the U.S. Court of Appeals for the District of Columbia Circuit, to rehear the case. It is unlikely to agree to do so, but ruling on the request could take time.
After that, Mr. Trump would very likely ask the U.S. Supreme Court to hear the case. Last month, the justices turned down an unusual request from Jack Smith, the special counsel, to leapfrog the appeals court and consider the matter immediately.
But that is no reason to think the Supreme Court will not want to have the last word on a question as consequential as the scope of presidential immunity. Even if the court moves very quickly — as it so far has on the separate question of whether Mr. Trump is eligible to hold office under the 14th Amendment — it could take several weeks to render a decision.
Time, in other words, is Mr. Trump’s friend. If he can defer the case beyond the election in November and win at the polls, he could try to pardon himself or instruct the Justice Department to drop the case against him. Such moves, in turn, could bring the matter full circle — by prompting calls for a third impeachment.
Takeaways From Trump’s Indictment in the 2020 Election Inquiry
Four charges for the former president. Former President Donald Trump was charged with four counts in connection with his widespread efforts to overturn the 2020 election. The indictment was filed by the special counsel Jack Smith in Federal District Court in Washington. Here are some key takeaways:
The indictment portrayed an attack on American democracy. Smith framed his case against Trump as one that cuts to a key function of democracy: the peaceful transfer of power. By underscoring this theme, Smith cast his effort as an effort not just to hold Trump accountable but also to defend the very core of democracy.
Trump was placed at the center of the conspiracy charges. Smith put Trump at the heart of three conspiracies that culminated on Jan. 6, 2021, in an attempt to obstruct Congress’s role in ratifying the Electoral College outcome. The special counsel argued that Trump knew that his claims about a stolen election were false, a point that, if proved, could be important to convincing a jury to convict him.
Trump didn’t do it alone. The indictment lists six co-conspirators without naming or indicting them. Based on the descriptions provided, they match the profiles of Trump lawyers and advisers who were willing to argue increasingly outlandish conspiracy and legal theories to keep him in power. It’s unclear whether these co-conspirators will be indicted.
Trump’s political power remains strong. Trump may be on trial in 2024 in three or four separate criminal cases, but so far the indictments appear not to have affected his standing with Republican voters. By a large margin, he remains his party’s front-runner in the presidential primaries.
A Guide to the Various Trump Investigations
Confused about the inquiries and legal cases involving former President Donald Trump? We’re here to help.
Key Cases and Inquiries: The former president faces several investigations at both the state and the federal levels, into matters related to his business and political careers. Here is a close look at each.
What if Trump Is Convicted?: Will any of the proceedings hinder Trump’s 2024 presidential campaign? Can a convicted felon even run for office? Here is what we know, and what we don’t know.
Receive a Weekly Update: Sign up for the Trump on Trial newsletter to get the latest news and analysis on the cases in New York, Florida, Georgia and Washington, D.C.
“FBI arrests Jan. 6 fugitives early this morning in Lake County, FL,” the agency wrote on X on Saturday, 6 January, adding that the trio are expected to appear in federal court on 8 January in Ocala, Florida.
Two men and one woman were arrested: Joseph Daniel Hutchinson III, Jonathan Daniel Pollock, and Olivia Michele Pollock.
Mr Hutchinson, 27, and Ms Pollock, 33, were wanted for assaulting, resisting, or impeding certain officers, aiding and abetting, knowingly entering restricted building or grounds without lawful authority, violent entry and disorderly conduct on Capitol grounds.
Mr Pollock, 24, was wanted for the same offenses, as well as theft of government property.
The FBI warned that all three “should be considered armed and dangerous.”
FBI announces capture of three Jan 6 fugitives on third anniversary of riot (FBI)
Federal arrest warrants were issued for the trio — along with two others — on 25 June, 2021.
According to the criminal complaint, Mr Pollock came dressed to the Capitol riot wearing an all-camouflage outfit, including “ballistic plate-carrier vest” and kneepads. The complaint accuses him of stealing an officer’s riot shield and being physical with police, including “holding the officer’s neck, in a choking action.”
He had taken several weeks off work to travel to Washington DC, and when he returned, he apparently showed photos of himself to “brag to his coworkers about having been on the news.”
After returning to the office for a day, he told his superiors that “he had a ‘family emergency,’ left the worksite, and did not return again,” the complaint states.
Olivia Pollock, the sister of Jonathan Pollack, was wearing a white flag insignia, a green headband, and the same type of vest, according to the filing. Footage captured Ms Pollock carrying a flagpole with the American flag and allegedly stripping a baton from an officer.
The Pollock family owns a Lakeland, Florida gun shop, where Mr Hutchinson works. Footage captured Mr Hutchinson punching an officer, the filing states.
More than 1,200 people have been charged in connection to the Capitol riot, the Justice Department said. Like this trio, more than 450 have been charged with assaulting, resisting, or impeding officers and over 1800 have been charged with entering or remaining in a restricted federal building.
“By the way, there was Antifa, there was FBI, there were a lot of other people there too leading the charge,” Mr Trump said at a rally in Sioux, Center Iowa on Friday, 5 January. “You saw the same people that I did.”
Mr Trump also said at the campaign event that he believed the audience on January 6, 2021 was the “biggest crowd, I believe, I ever spoke to—you never hear about that do you?”
He then turned to “the hostages,” seemingly referring to those arrested and charged for their actions on January 6. “The J6 hostages, I call them. Nobody’s been treated ever in history so badly as those people,” he said.
Their imprisonment, Mr Trump said, will go down as “one of the saddest things in the history of our country. And they went there to protest a rigged election.”
The Justice Department reported since the 2021 riot, over 1,200 individuals have been charged with crimes connected to the Capitol attack, while more than 700 people have pleaded guilty to various federal charges.
Saturday, January 6, 2024 marks three years since the violent attack on the Capitol building, which led to the deaths of four rioters and five police officers and left many more injured.
Mr Trump’s false claims about the Capitol riot and 2020 election fraud come as he faces his own accusations federally and in Georgia regarding his alleged efforts to overturn the presidential election.
In its final report in 2022, the House select committee investigating the January 6 Capitol attack also named Mr Trump as the “central cause” of the riot “whom many others followed.”
Despite the “rigged election” claims, the former president is running again — and holds a substantial lead in the GOP polls. His campaign speech in Iowa comes less than two weeks before the state’s caucuses, which kick off the primary elections.
Supreme Court to decide if emergency room doctors can perform medically necessary abortions in states that prohibit them
Devan Cole, CNN – January 5, 2024
The Supreme Court said Friday that it will decide whether emergency room doctors can perform medically necessary abortions in states that prohibit them, bypassing the court of appeals to resolve on an expedited basis a lawsuit brought by the United States against Idaho.
It’s the second major abortion case the court will consider this year amid the fallout from the reversal of Roe v. Wade in 2022. The justices are already set to hear a case about access to the abortion drug mifepristone – even in states where the procedure is legal.
Idaho’s Defense of Life Act is a near total ban on abortion, but there is an exception to prevent the mother’s death. The law imposes penalties on doctors who perform prohibited abortions unless the “physician determined in good faith medical judgement and based on the facts known to the physician at the time, that the abortion was necessary to prevent the death of the pregnant woman.” Physicians who violate the law could face criminal penalties and risk the suspension of their licenses.
The Biden administration sued, claiming that a provision of a federal Medicare statue – the Emergency Medical Treatment and Labor Act (EMTALA) – preempts Idaho’s law in emergency rooms.
The federal law requires hospitals to provide stabilizing care to emergency room patients regardless of their ability to pay. It was enacted to ensure that the poor and uninsured receive emergency medical care at hospitals receiving Medicare reimbursement.
A district court in Idaho blocked the law in hospital emergency rooms that receive Medicare funding, holding that the state law interferes with a federal Medicare statute.
In 2022, US District Judge B. Lynn Winmill said that the “broad scope” of Idaho’s near-total ban on abortion meant that he was not convinced that it would be possible for emergency health care workers to “simultaneously comply with obligations” under both state and federal law. “The state law must therefore yield to federal law to the extent of that conflict,” he wrote.
A federal appeals court later agreed to put the district court ruling on hold pending appeal, but a larger panel of judges on the 9th US Circuit Court of Appeals lifted the pause on November 13. The Idaho law will now be in effect pending the Supreme Court’s decision.
The state, represented by a conservative legal group that opposes abortion, then turned to the Supreme Court, asking the justices to step in on an emergency basis to put the district court ruling on hold while appeals play out.
“After Dobbs,” Erin Hawley a lawyer for the Alliance Defending Freedom told the justices in court papers, “the United States adopted the novel view that EMTALA creates a federal right to abortion in emergency rooms, even though EMTALA is silent on abortion and actually requires stabilizing for the unborn children of pregnant women.”
The Justice Department warned the justices that the law’s provision could have “devastating harms” for women in the state and urged the court to keep that part of it on pause.
“As the district court recognized, when state law criminalizes essential care required by federal law, ordinary principles of preemption require state law to give way,” Solicitor General Elizabeth Prelogar said in court papers.
“The narrow preliminary injunction is preserving the status quo and protecting women and doctors in Idaho from the devastating harms that would result if doctors could be subjected to criminal prosecution for providing essential emergency care,” Prelogar wrote.
The ruling will have national implications.
“While the mifepristone case is especially relevant for the availability of abortions in states in which they are still largely legal, this case has enormous ramifications for the availability of abortions in emergency circumstances in states in which they are not,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.
This story has been updated with additional details.
Supreme Court allows Idaho’s near-total abortion ban in emergency room in blow to Biden
John Fritze, USA TODAY – January 5, 2024
WASHINGTON – The Supreme Court on Friday allowed Idaho to enforce its strict abortion ban in emergency rooms for now, rebuffing a Biden administration effort to ensure additional access to the procedure in red-state hospitals.
The court also agreed to hear arguments in the case this spring, placing a second major abortion case before the justices just over a year after the overturning of Roe v. Wade.
Idaho’s law makes it a crime for doctors to perform an abortion unless a physician can demonstrate that the mother’s life is in danger. The Biden administration claimed a separate federal law requires emergency rooms to provide “stabilizing care,” including abortions, for a broader range of circumstances, such as if a patient’s health is in “serious jeopardy.”
At issue in this case is a federal law that requires hospitals that receive federal funding, such as through Medicare, to provide stabilizing treatment to patients even if they can’t afford to pay. The idea was to ensure hospitals would provide basic care to all patients.
After the Supreme Court’s decision to overturn Roe, the Biden administration said that the federal law requires hospitals to provide that same care to pregnant patients, including performing an abortion, if necessary, regardless of a state ban on the procedure.
Idaho officials said President Joe Biden was attempting to interpret the Medicare law into a “federal super-statute on the issue of abortion, one that strips Idaho of its sovereign interest in protecting innocent human life and turns emergency rooms into a federal enclave where state standards of care do not apply.”
But the Justice Department said the guidance was simply clarifying existing federal law. That federal law, federal officials said, trumps state abortion bans that went into effect last year.
Protesters mark the first anniversary of the Supreme Court’s decision overturning Roe v. Wade by displaying a neon sign in support of abortion access on June 23, 2023.
Women can experience severe medical conditions during pregnancy that would not be covered by exceptions for the life of a mother, including sepsis, uncontrollable bleeding, kidney failure, and loss of fertility.
Twenty conservative states, many with strict abortion bans, backed Idaho. But it’s not only conservative states with strict bans where the Biden administration’s guidance would potentially have an impact.
Even states without strict abortion bans – or states with more expansive exceptions than Idaho’s – could be affected. For one thing, the federal law at issue applies to religiously affiliated hospitals that receive federal funding but decline to provide abortions even though their state law would otherwise allow them.
A federal appeals court in California sided with the Biden administration on a temporary basis earlier this month, blocking enforcement of the provisions of the Idaho law at issue.
Abortion initiative hits milestone for getting in front of Florida voters
Mike Schneider – January 5, 2024
FILE – Florida Attorney General Ashley Moody speaks at a news conference, Jan. 26, 2023, in Miami. A petition initiative that would enshrine abortion rights in the Florida constitution on Friday, Jan. 5, 2024, reached the necessary number of verified signatures to qualify for the 2024 ballot. (AP Photo/Marta Lavandier, File)
ORLANDO, Fla. (AP) — A petition initiative that would enshrine abortion rights in the Florida constitution on Friday reached the necessary number of verified signatures to qualify for the 2024 ballot, officials said.
More than 911,000 signatures have been verified, according to the Florida Division of Elections, surpassing the more than 891,500 petition signatures required by the state to put a ballot initiative before voters.
If the measure ultimately makes it on the fall ballot, voters in the third-most populous U.S. state could join citizens of other states in deciding what, if any, abortion protections or restrictions there should be following the U.S. Supreme Court’s decision to overturn Roe v. Wade in 2022.
Since that landmark 1973 case giving constitutional protections for abortion across the United States was overturned in the Dobbs decision, voters in at least seven states have supported ballot measures protecting abortion rights or rejected measures aimed at limiting access. Constitutional amendments to protect access are already on the ballots for 2024 in Maryland and New York.
“We know what will happen if reproductive rights make it onto the ballot in 2024 — just like in every other state since Dobbs, Florida voters will choose to keep the government out of their health care decisions,” said Nikki Fried, chair of the Florida Democratic Party.
The proposed amendment would allow abortions in Florida to remain legal until the fetus is viable, as determined by the patient’s health care provider. If the amendment makes the ballot, it will need at least 60% voter approval to take effect.
Florida Attorney General Ashley Moody says that abortion rights proponents and opponents have differing interpretations as to what viability means. Those differences along with the failure to define “health” and “health-care provider,” she said, are enough to deceive voters and potentially open a box of legal questions in the future.
Because of that, the Republican attorney general has asked the state Supreme Court to keep the proposed measure off the ballot, saying proponents are waging “a war” to protect the procedure and ultimately will seek to expand those rights in future years.
The court will hear arguments Feb. 7 on whether the ballot language should be approved.
A law Florida Gov. Ron DeSantis approved last year banning abortion after 15 weeks is being challenged in court.
If the courts uphold the law — DeSantis appointed five of the Supreme Court’s seven justices — a bill DeSantis signed this year will ban abortion after six weeks, which is before many women know they are pregnant. DeSantis, who is running for president, has said he would support a federal abortion ban after 15 weeks.
Any change in abortion access in Florida will be felt out of state as well because the Sunshine State traditionally has been a haven for women in the southeastern U.S. seeking abortions. There are bans on abortion at all stages of pregnancy in nearby Alabama, Louisiana and Mississippi and a ban on terminating pregnancies in Georgia after cardiac activity can be detected.
Abortion rights groups reach petition threshold to put abortion on Florida ballot in 2024
Carlos Suarez and Denise Royal – January 5, 2024
A coalition of Florida abortion rights supporters announced on Friday they have gathered enough signatures to put a state constitutional amendment protecting the right to an abortion on the ballot in 2024. Election officials have verified 910,946 petitions submitted by Floridians Protecting Freedom, according to the Florida Division of Elections website.
The group said it needed 891,523 verified petitions to make it on the ballot. They said they expect to receive official notification from the Florida Division of Elections in the coming weeks.
If the measure makes it on to the ballot, Florida will join several other states where voters have weighed in directly on reproductive rights since the Supreme Court overturned Roe v. Wade. The initiative could also boost voter turnout, as it has in states like Ohio, which could give Democrats an advantage as President Joe Biden looks to secure another term.
“The fact that we only launched our campaign eight months ago and we’ve already reached our petition goal speaks to the unprecedented support and momentum there is to get politicians out of our private lives and health care decisions,” said campaign director Lauren Brenzel.
“Most initiative campaigns never make it this far. The ones that do usually spend far more or take much longer to qualify, which is why we’re so confident that voters will approve our amendment once they’re given a chance to vote,” Brenzel added.
The Florida Supreme Court still must approve the language of the ballot measure which is being challenged by Florida Attorney General Ashley Moody.
The proposed amendments reads, “No law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider.’
In a legal brief filed in October, Moody asked the Court to kill the amendment, arguing the language is vague and confusing.
Moody argued that it uses language aimed at tricking voters. The brief specifically takes aim at terms like “health,” “viability” and “healthcare provider” and says they are too ambiguous.
Oral arguments are scheduled on February 7 in front of the Florida Supreme Court.
Florida Gov. Ron DeSantis, a Republican, appointed five of the seven justices on the current court, giving it a conservative majority.
Should the measure make it on the ballot and be approved by at least 60% voters, the amendment would undo Florida’s current 15-week ban on abortions. In 2023, lawmakers passed a 6-week ban, which will only go into effect if the 15-week ban is upheld by the Florida Supreme Court.
This story has been updated with additional information.
Kavanaugh will ‘step up’ to keep Trump on ballots, ex-president’s lawyer says
Martin Pengelly in Washington – January 5, 2024
Photograph: Jonathan Ernst/Reuters
Brett Kavanaugh, the US supreme court justice, will “step up” for Donald Trump and help defeat attempts to remove the former president from the ballot in Colorado and Maine for inciting an insurrection, a Trump lawyer said.
“I think it should be a slam dunk in the supreme court,” Alina Habba told Fox News on Thursday night. “I have faith in them.
“You know, people like Kavanaugh, who the president fought for, who the president went through hell to get into place, he’ll step up. Those people will step up. Not because they’re pro-Trump but because they’re pro-law, because they’re pro-fairness. And the law on this is very clear.”
Kavanaugh was the second of three justices appointed by Trump, creating a 6-3 rightwing majority that has delivered major Republican victories including removing the federal right to abortion and loosening gun control laws.
Habba’s reference to Trump “going through hell” was to a stormy confirmation during which Kavanaugh was accused of sexual assault, which he angrily denied. Trump reportedly wavered on Kavanaugh, only for senior Republicans to persuade him to stay strong.
Observers were quick to notice Habba’s apparent invitation to corruption.
Michael Kagan, a law professor at the University of Nevada, Las Vegas, said: “Legal ethics alert. If … Kavanaugh feels in any way that he owes Trump and will ‘step up’, then [Habba] should be sanctioned by the bar for saying this on TV and thus trying to prejudice a proceeding.”
Last month, the Colorado supreme court and the Maine secretary of state ruled that Trump should be removed from the ballot under the 14th amendment to the US constitution, passed after the civil war to stop insurrectionists holding office.
Trump incited the deadly January 6 attack on Congress in 2021, an attempt to stop certification of his defeat by Joe Biden. Impeached but acquitted, he is now the frontrunner for the Republican presidential nomination this year.
Trump has appealed both state rulings. In a supreme court filing in the Colorado case, lawyers argued that only Congress could resolve such a dispute and that the presidency was not an office of state as defined in the 14th amendment.
The relevant text does not mention the presidency or vice-presidency. ABC News has reported exchanges in debate in 1866 in which those positions are covered.
The supreme court has not yet said if it will consider the matter.
Norm Eisen, a White House ethics tsar turned CNN legal analyst, said: “It’s likely … the supreme court will move to resolve this. They may do it quickly. They may not do it quickly because by filing this petition … Trump has stayed the Colorado proceedings. So at the moment he remains on the ballot. The supreme court does have to speak to it.”
Habba said:
“[Trump] has not been charged with insurrection. He has not been prosecuted for it. He has not been found guilty of it.”
She then made her prediction about Kavanaugh and other justices “stepping up”.
Trump ‘dictator’ comments raise questions about democracy. Here are 5 guardrails – if they hold
Riley Beggin and Angele Latham – January 5, 2024
As he seeks a second term in office, former President Donald Trump has indicated he plans to dramatically expand the power of the presidency and upturn democratic precedents.
Multiple American presidents of both parties have tested the bounds of executive power. But these pledges – and Trump’s unwillingness to acknowledge the valid results of the 2020 election, including saying the “termination” of the Constitution would be appropriate to overturn it − have experts in authoritarianism particularly on edge for what a second term would bring.
The United States government was built to withstand attempts to concentrate power in the hands of a single leader by vesting authority in Congress and the courts to check the president. There are also several agencies that operate independently of the president and decades of precedent that can create additional guardrails for democracy.
Experts who spoke with USA TODAY had varied opinions on the strength of those guardrails to stand up to potential abuses of power. Some said a widespread abandonment of democratic principles is unlikely; others suggested Trump has already proven they can be worn down.
Former President Donald Trump speaks after exiting the courtroom for a break at New York Supreme Court, Dec. 7, 2023, in New York.
In either case, they said, the strength of American democracy depends on how willing people are within the system to defend it in the face of retaliation.
“There is a possibility that the Constitution’s limits are exposed,” said Daniel Kiel, a professor of constitutional law at the University of Memphis. The Constitution sets rules to protect democracy, but it works only if people follow them, he said.
“If we don’t have voluntary adherence to the rules of the game, then it reveals that the Constitution on its own isn’t enough.”
Here’s more on five key guardrails at play in curbing potential abuses of executive power.
The courts
The judicial system, a co-equal branch of government, is a major arbiter of whether policies spearheaded by Congress or the president are legal.
“One of the guardrails against presidential dictatorship is the expectation that the other institutions will push back,” said Joel Goldstein, a law professor and constitutional expert at St. Louis University School of Law. “The Constitution requires every member of Congress, every member of the court, to take an oath to support the Constitution. And the premise behind that is that if you have a president who steps out of his or her lane, exceeds his or her power, as preventions to dictatorship the other institutions will push back.”
Trump has had a particularly significant influence on the court system: He appointed more than 200 federal judges in four years in office, only about 30% fewer than Presidents Barack Obama and George W. Bush, who each served two terms.
A relatively high proportion of those were in the higher ranks. For instance, he appointed 54 judges to the nation’s 13 powerful appeals courts (compared with 55 appointed by Obama and 62 by Bush). He also appointed three U.S. Supreme Court justices, more than any president since Ronald Reagan. That created the conservative supermajority now serving on the nation’s highest court.
Chief Justice of the United States John Roberts, Justice Clarence Thomas and Justice Samuel Alito attend a private ceremony for retired Supreme Court Justice Sandra Day O’Connor before public repose in the Great Hall at the Supreme Court in Washington, DC, on Dec. 18, 2023.
But that doesn’t mean the justices would allow a significant power grab. In fact, the Supreme Court has ruled against Trump in more cases than any president in modern history.
Trump and the Supreme Court would likely be on the same page about some disputes, said Philip Gorski, a political sociologist at Yale University, such as his plan to purge the civil service.
But “the real acid test would be around elections and presidential immunity,” he said.
The high court has already made one key decision in Trump’s favor: In late December, it declined special counsel Jack Smith’s request to take up Trump’s claim that he is immune from prosecution in the federal election interference case. The move is a boon for Trump in that it may delay the start of his March 4 trial, which is schedule a day before 16 states hold primary elections.
Congress
“One of the most important checks on executive power – the most obvious and the most powerful – is Congress,” said Sheri Berman, a political science professor at Barnard College.
Congress was built to be a co-equal branch of government with the president. But as the United States became a larger global player and the number of federal agencies expanded, presidents gained much more power to shape policy without the help of Congress.
Goldstein said that apart from a citizen’s initial vote, the role of Congress to uphold an equal separation of powers is one of the most vital to prevent extreme presidential overreach.
US House Speaker Mike Johnson, R-La., speaks to the press after meeting with Ukrainian President Volodymyr Zelensky on Capitol Hill in Washington, DC, on December 12, 2023.
The legislative branch has the power to rein in a president. They are the only branch with constitutional power to tax and spend, can pass laws limiting executive branch regulatory powers (especially with a president set on slashing regulation), and remain able to impeach, convict and remove a president from office – but only with enough support in the House and Senate.
But “one of the things that I think has made Trump so dangerous is that the Republican Party has pretty much fallen in behind him,” Berman said. Trump remains extraordinarily popular among the GOP base – and he doesn’t hesitate to go after members of his own party who publicly defy him – which can make it challenging for a Republican-controlled Congress to be a significant check on his power, she said.
The ‘power ministries’
Trump has claimed he is being targeted for political reasons by Smith, the nonpartisan special prosecutor, and pledged to use the Justice Department to “go after” President Joe Biden and other political adversaries if elected.
He also has said he would send the National Guard into cities with high crime rates “until law and order is restored” and to the southern border “to stop the invasion” of record numbers of migrants seeking asylum in the U.S. Trump and his top military leaders clashed over Trump’s suggestion of using military might to quell protests in the wake of George Floyd’s murder in Minneapolis in summer 2020.
“The real threat is if he is able to purge and co-opt the power ministries: law enforcement, defense, intelligence,” said Yale’s Gorski. “Failing that, he can’t really go beyond being a norm-defying president.”
FBI Director Christopher Wray, speaks with reporters during a news conference at the Department of Justice on Dec. 6, 2023, in Washington, as from left, Senior Official Performing the Duties of the Deputy Director Staci Barrera, of U.S. Immigration and Customs Enforcement, Assistant Attorney General Nicole M. Argentieri of the Criminal Division, Secretary of Homeland Security Alejandro Mayorkas and Attorney General Merrick Garland, look on.More
There are multiple reasons to believe those “power ministries” would stand firm, he said. The militaries of successful strongmen are often drawn from the region or ethnic group that has strong ties to the leader. “The fact that we have a really cross-class, multiracial, inclusive military is certainly a buttress,” he said.
Gorski and Berman said the defense communities are staffed with people who are largely nonpartisan, professional and committed to defending the Constitution.
“Because of the strong ethos within each of those agencies or branches of the government – I would still expect considerable pushback,” Gorski said.
Elections
Multiple experts noted there is an often-overlooked guardrail to protect democracy that can prevent concerns of overreach from the very beginning: voting.
“The first act of rejection of these anti-democratic proposals should be at the ballot,” said Frederico Finchelstein, a history professor at the New School for Social Research in New York.
“If that is not effective, the situation will be very problematic because then you will have a person who is supported by votes” to deliver on anti-democratic promises – a voter mandate that could bolster arguments for more authoritarian policies, he said.
Lee Curran of Cherry Hill emerges from the voting booth after casting his vote at the Erlton Fire Company, district 25 in Cherry Hill, N.J. Tuesday, Nov. 8, 2022.
Goldstein expressed a similar sentiment.
“A democratic government is the antithesis of a dictatorship – and so the first guardrail against presidential dictatorship is not to elect somebody who has tendencies toward authoritarianism or dictatorial tendencies,” he said.
Though the right to vote is the first step in checking presidential power, Kiel warns that should Trump be duly elected in 2024, that electoral support might embolden him to push the limits of his presidential power.
“There was already a second reelection effort (by Trump) that failed, and so the voters have limited his power by voting him out of office,” Kiel said. Trump has been impeached twice − and acquitted twice in the Senate − and lost election once, he added: “If he were to be returned to office … I do think it’s a unique scenario in that one might feel more emboldened to test those limits of presidential power because those limits have proven already inadequate.”
The press
A primary guardrail of democracy, multiple experts noted, is also often the loudest one in the room: the press.
“The freedom of the press, the freedom of speech − our system depends upon a belief that the press and dissidents can speak against the government,” Goldstein said. “And that you as a citizen are not being unpatriotic by criticizing the government − it’s our patriotic duty to criticize the government when it acts improperly.”
But the attitude of a presidential administration toward the press can drastically affect the public’s trust in America’s oldest institution.
Trump has been a vocal critic, repeatedly claiming the press is intentionally peddling false information about him and his former administration. Kash Patel, a close ally who is likely to have a national security role in a second Trump administration, said that a new administration would “go out and find the conspirators” in the media.
TUCSON, ARIZONA – JULY 31: Kash Patel, a former chief of staff to then-acting Secretary of Defense Christopher Miller, speaks during a campaign event for Republican election candidates at the Whiskey Roads Restaurant & Bar on July 31, 2022 in Tucson, Arizona. With less than two days to go before the Arizona primary election, candidates continue campaigning across the state. (Photo by Brandon Bell/Getty Images)More
Patel’s statements reflect a growing gap among Americans regarding the trustworthiness and efficacy of reputable news organizations to provide that constitutional guardrail.
In 2020, the Pew Research Center found that the gap between Americans who view a number of notable news sources as “trustworthy” versus “untrustworthy” has widened significantly since 2014 – and almost entirely along political lines.
Indeed, another study found that the number of citizens who believed that news organizations’ criticism of elected leaders “(kept) them from doing things they shouldn’t” split dramatically after the first year of Trump’s presidency.
In January 2016, 75% of respondents believed news organizations protected from governmental overreach, and the gap between Republican-leaning respondents and Democrat-leaning respondents spanned 3 points. One year into Trump’s term, that gap widened to 47 points.
Looking forward
These five factors each have a role to play in protecting democracy in the United States, the experts who spoke with USA TODAY said. But their success hinges on the people inside each institution acting in the country’s best interest.
“Ultimately, any guardrail on presidential authoritarianism or dictatorship depends upon government officials and citizens valuing constitutional principle above short-term partisan advantage,” said Goldstein, of St. Louis University.
When people are more interested in “protecting their own team” than following the Constitution, he said, “then the system can unwind.”
