As we embark on a new year, we find ourselves asking the same old question about the disgraced 45th president of the United States: When—if ever--will Donald Trump be brought to justice?

And to this day, he has yet to be charged with a single criminal offense, whether for his attempts to undermine the results of the 2020 election; his role in sparking the January 6, 2021, insurrection; or his sordid history in the private sector as a marketing con man and real-estate huckster.

Understandably, many Americans have become cynical about the prospects of holding Trump to account. Many fear that Trump has forever damaged what remains of our collective commitment to the rule of law.

But all is not lost. Amid the gloom, there are encouraging signs that Trump may finally be headed for a day of reckoning.

The House January 6 Select Committee is diligently investigating the origins of the insurrection, including Trump’s part in inciting the riot at the Capitol that delayed the certification of Joe Biden’s victory. Both Bennie Thompson (D-SC), the committee’s chairperson, and Liz Cheney (R-WY), the ranking Republican, have disclosed that Trump is under consideration for a criminal referral to the Justice Department.

At the same time, state-level investigations against Trump appear to be heating up in New York and Georgia.

While we endure the agonizing wait, investigators have a truly staggering array of potential charges to shift through and analyze. They include:

FEDERAL CRIMES

I. Offenses Related to the Insurrection and the Attempt to Halt or Delay the Certification of the 2020 Electoral College Vote Count.

Inciting an Insurrection, 18 U.S.C. § 2383, maximum penalty: ten years in prison.

Seditious Conspiracy, 18 U.S.C. § 2384, maximum penalty: twenty years in prison.

Conspiracy to Defraud the United States, 18 U.S.C. § 371, maximum penalty: five years in prison.

Obstructing an Official Proceeding, 18 U.S.C. § 1512, maximum penalty twenty years in prison.

II. Offenses Related to the Phone Call Pressuring Georgia Secretary of State Brad Raffensperger to “Find” Enough Votes to Overturn the State’s Election Results.

Depriving or Defrauding the Citizens of a State of a Fair and Impartially Conducted Election, 52 U.S.C. § 20511, maximum penalty: five years.

Conspiracy to Deprive the Citizens of a State of Rights Secured by the Constitution, 18 U.S.C. § 241, maximum penalty: ten years.

III. Offenses Related to the 2016 Election, the Hush-Money Payoffs to Stormy Daniels and Karen McDougal, and the 2017 “Reimbursements” to Michael Cohen.

Conspiracy to Defraud the United States, 18 U.S.C. § 371, maximum penalty: five years in prison.

Campaign Finance Law Violations, 52 U.S.C. § 30109, maximum penalty: five years in prison.

IV. Offenses Related to the Mueller Investigation, and the Attempts to Halt or Otherwise Derail the Investigation.

Obstruction of Justice, 18 U.S.C. §§ 1503, 1505, 1510, 1512, maximum penalty: ten years.

NEW YORK CRIMES

Offenses Related to Private Business Practices.

Falsifying Business Records, New York Penal Law, § 175.10, maximum penalty: four years in prison.

Tax Fraud, New York Tax Law, § 1806, maximum penalty: twenty-five years in prison.

Insurance Fraud, New York Penal Law, § 176.30, maximum penalty: twenty-five years in prison.

Conspiracy, New York Penal Law, § 105, maximum penalty: twenty-five years in prison.

Racketeering and Organized Criminal Activity, New York Penal Law § 460, maximum penalty: twenty-five years in prison.

GEORGIA CRIMES

Offenses Related to the Raffensperger Phone Call

Solicitation to Commit Election Fraud, Georgia Code § 21-2-64, maximum penalty: ten years in prison.

Tampering with a Voter’s Certificate, Georgia Code § 21-2-56, maximum penalty: ten years in prison.

There is no guarantee, of course, that any of this will lead to an actual arraignment.

While in office, Trump was shielded with temporary immunity from federal prosecution as a result of the Justice Department’s longstanding policy against indicting a sitting president. Although that immunity is gone, Trump would nonetheless be protected by the presumption of innocence, just like any other private citizen, were he to be prosecuted now. And it would represent a historic first for a former U.S. president to be charged with a crime. No prosecutor, state or federal, is going to roll the dice unless they are confident that they could prove Trump’s guilt beyond a reasonable doubt.

Ultimately, the final calls will be made by three prosecutors: Attorney General Merrick Garland on the federal level; Alvin Bragg Jr., the incoming Manhattan District Attorney in January; and Fani Willis, the Fulton County, GA, District Attorney.

Thus far in his tenure as the nation’s top law-enforcement officer, Garland has proven to be upright but overly cautious. Willis is viewed by some observers as being overburdened by an enormous caseload of ordinary prosecutions. Bragg is untested.

Whether any of the three prove to be up to the challenge, one thing is certain: It isn’t sufficient to prosecute the low-level rioters who stormed the Capitol. To restore the rule of law, the leaders of the insurrection must be charged and tried. This includes the ringleader of them all—Donald Trump.

In both New York and federal courts, the basic statute of limitations specifies that charges must be brought within five years of the commission of a felony. In Georgia, the general statute is four years.

The clock is ticking. There is no more time to waste.

This story first appeared at BlumsLaw.

As we embark on a new year, we find ourselves asking the same old question about the disgraced 45th president of the United States: When—if ever--will Donald Trump be brought to justice?

As president, Trump weathered both the Mueller investigation and two impeachment trials. And to this day, he has yet to be charged with a single criminal offense, whether for his attempts to undermine the results of the 2020 election; his role in sparking the January 6, 2021, insurrection; or his sordid history in the private sector as a marketing con man and real-estate huckster.

Understandably, many Americans have become cynical about the prospects of holding Trump to account. Many fear that Trump has forever damaged what remains of our collective commitment to the rule of law.

But all is not lost. Amid the gloom, there are encouraging signs that Trump may finally be headed for a day of reckoning.

The House January 6 Select Committee is diligently investigating the origins of the insurrection, including Trump’s part in inciting the riot at the Capitol that delayed the certification of Joe Biden’s victory. Both Bennie Thompson (D-MS), the committee’s chairperson, and Liz Cheney (R-WY), the ranking Republican, have disclosed that Trump is under consideration for a criminal referral to the Justice Department.

At the same time, state-level investigations against Trump appear to be heating up in New York and Georgia.

While we endure the agonizing wait, investigators have a truly staggering array of potential charges to shift through and analyze. They include:

FEDERAL CRIMES

I. Offenses Related to the Insurrection and the Attempt to Halt or Delay the Certification of the 2020 Electoral College Vote Count.

Inciting an Insurrection, 18 U.S.C. § 2383, maximum penalty: ten years in prison.

Seditious Conspiracy, 18 U.S.C. § 2384, maximum penalty: twenty years in prison.

Conspiracy to Defraud the United States, 18 U.S.C. § 371, maximum penalty: five years in prison.

Obstructing an Official Proceeding, 18 U.S.C. § 1512, maximum penalty twenty years in prison.

II. Offenses Related to the Phone Call Pressuring Georgia Secretary of State Brad Raffensperger to “Find” Enough Votes to Overturn the State’s Election Results.

Depriving or Defrauding the Citizens of a State of a Fair and Impartially Conducted Election, 52 U.S.C. § 20511, maximum penalty: five years.

Conspiracy to Deprive the Citizens of a State of Rights Secured by the Constitution, 18 U.S.C. § 241, maximum penalty: ten years.

III. Offenses Related to the 2016 Election, the Hush-Money Payoffs to Stormy Daniels and Karen McDougal, and the 2017 “Reimbursements” to Michael Cohen.

Conspiracy to Defraud the United States, 18 U.S.C. § 371, maximum penalty: five years in prison.

Campaign Finance Law Violations, 52 U.S.C. § 30109, maximum penalty: five years in prison.

IV. Offenses Related to the Mueller Investigation, and the Attempts to Halt or Otherwise Derail the Investigation.

Obstruction of Justice, 18 U.S.C. §§ 1503, 1505, 1510, 1512, maximum penalty: ten years.

NEW YORK CRIMES

Offenses Related to Private Business Practices.

Falsifying Business Records, New York Penal Law, § 175.10, maximum penalty: four years in prison.

Tax Fraud, New York Tax Law, § 1806, maximum penalty: twenty-five years in prison.

Insurance Fraud, New York Penal Law, § 176.30, maximum penalty: twenty-five years in prison.

Conspiracy, New York Penal Law, § 105, maximum penalty: twenty-five years in prison.

Racketeering and Organized Criminal Activity, New York Penal Law § 460, maximum penalty: twenty-five years in prison.

GEORGIA CRIMES

Offenses Related to the Raffensperger Phone Call

Solicitation to Commit Election Fraud, Georgia Code § 21-2-64, maximum penalty: ten years in prison.

Tampering with a Voter’s Certificate, Georgia Code § 21-2-56, maximum penalty: ten years in prison.

There is no guarantee, of course, that any of this will lead to an actual arraignment.

While in office, Trump was shielded with temporary immunity from federal prosecution as a result of the Justice Department’s longstanding policy against indicting a sitting president. Although that immunity is gone, Trump would nonetheless be protected by the presumption of innocence, just like any other private citizen, were he to be prosecuted now. And it would represent a historic first for a former U.S. president to be charged with a crime. No prosecutor, state or federal, is going to roll the dice unless they are confident that they could prove Trump’s guilt beyond a reasonable doubt.

Ultimately, the final calls will be made by three prosecutors: Attorney General Merrick Garland on the federal level; Alvin Bragg Jr., the incoming Manhattan District Attorney in January; and Fani Willis, the Fulton County, GA, District Attorney.

Thus far in his tenure as the nation’s top law-enforcement officer, Garland has proven to be upright but overly cautious. Willis is viewed by some observers as being overburdened by an enormous caseload of ordinary prosecutions. Bragg is untested.

Whether any of the three prove to be up to the challenge, one thing is certain: It isn’t sufficient to prosecute the low-level rioters who stormed the Capitol. To restore the rule of law, the leaders of the insurrection must be charged and tried. This includes the ringleader of them all—Donald Trump.

In both New York and federal courts, the basic statute of limitations specifies that charges must be brought within five years of the commission of a felony. In Georgia, the general statute is four years.

The clock is ticking. There is no more time to waste.

For better or worse, the nine unelected elite lawyers who hold lifetime tenure as Justices of the United States Supreme Court have the last word on the interpretation of the Constitution. They and they alone get to pass final judgment on fundamental issues that touch all of our lives.

It is critically important, therefore, that the methodologies the Justices use to decide constitutional questions meet certain standards, and that their rulings are not only consistent with the text and history of the Constitution, but also responsive to the evolving needs and values of ordinary Americans.

This is, to be fair, no easy task, but it should be doable.

Sadly, the Supreme Court under the leadership of Chief Justice John Roberts has failed the test. The failure stems in large part from the court's embrace of a doctrinaire legal philosophy known as "originalism."

Originalism has led the court to enter a legal fantasy world in which the answers to contemporary questions about such matters as voting rights and gerrymandering, union organizing, the death penalty, search and seizure, gun control, abortion and campaign finance are to be found solely in the meaning that the Constitution had for the Founding Fathers in the late 18th Century. For originalists, the meaning of the Constitution is forever fixed, and can only be altered by constitutional amendments.

Originalism, as a tool of judicial decision-making, has been around a long time. One of its earliest expressions came in the Dred Scott case of 1857, perhaps the most odious decision ever issued by the Supreme Court, which held that Black Americans of African descent could never be U.S. Citizens. Plessy v. Ferguson, the 1896 decision that upheld the constitutionality of racial segregation even after the ratification of the 13th, 14th and 15th Amendments, is another originalist landmark.

But as I have written before, originalism as an explicit judicial theory came into vogue in the early 1980s. Initially, as popularized by Reagan-era Attorney General Ed Meese and the late failed-Supreme Court nominee Robert Bork, the doctrine asserted that the most important terms and provisions that appear in the Constitution and the Bill of Rights, such as "freedom," "liberty," "due process," and "cruel and unusual punishments," should be understood according to the "original intent" of the Founding Fathers, rather than as broad concepts that acquire depth, content and more complete meaning over time in response to changing social conditions.

When critics noted that the framers of the Constitution were a diverse group and that their actual intentions were varied and often ambiguous, proponents of the doctrine refined their approach. The current version—call it "new originalism"—was popularized by the late Supreme Court Justice Scalia and has been enthusiastically embraced and promoted by all six Republican-appointed Justices sitting on the court today.

Instead of emphasizing original intent, new originalists focus on the "original public meaning" of Constitutional provisions, which, they contend, can be ascertained from the recorded debates of the founding era and from such sources as late eighteenth-century dictionaries.

All originalists—whether of the old or new iteration—believe that their approach limits the subjectivity of judges and acts as a restraint on judicial activism.

In fact, originalism does nothing of the sort. As Fordham University history professor Saul Cornell has noted:

[I]f one looks carefully at the murky methodology and dubious practices of new originalism, it is clear that its historical foundations are even shakier than that of old originalism. The new theory is little more than an intellectual shell game in which contemporary political preferences are shuffled around and made to appear part of the Constitution's original meaning.

Originalism was front and center during the oral arguments the court conducted earlier this term in a hotly contested appeal that could determine the future of gun control in the United States.

The case--New York State Pistol Association v. Corlett—is the first major Second Amendment challenge the court has entertained since it handed down a pair of decisions in 2008 (District of Columbia v. Heller) and 2010 (McDonald v. Chicago) that recognized an individual constitutional right to keep firearms in the home.

The new case was brought by two individuals and the state affiliate of the National Rifle Association to overturn a New York law that places limits on the issuance of concealed weapons permits to carry guns outside the home. Under New York's regulatory scheme, people seeking such permits are required to demonstrate a special need for protection — "proper cause" in the words of the statute—to qualify. The NRA contends the law is unconstitutional.

During the oral arguments, the Justices paid too little attention to the dire consequences of unleashing more guns on the streets of present-day New York City. They instead peppered the attorneys for both sides with questions about the origins under Anglo-American law of the right to carry arms in public places. At several points in the two-hour session, the attorneys were asked to share their thoughts on whether the Statute of Northhampton, an act of the English Parliament passed in 1328, banned the carrying of weapons other than by the king's servants in fairs and markets.

The questioning would have made for an amusing Saturday Night Live or Monty Python skit, but this is real life. Commenting on the oral arguments, Professor Cornell told the BBC it was "beyond ironic" that anyone would look to Medieval England for resolution of the case. "It just doesn't make any sense whatsoever to anyone who really understands the complexity of English history. Obviously, that doesn't include many people in the gun rights community or many people sitting on some courts in America."

There is, of course, a better and more reality-centered way to adjudicate constitutional issues. Originalism's rival, known variously as "living or dynamic constitutionalism," asserts that while the text of the Constitution may be the starting point of any analysis, the meaning of the Constitution should evolve over time and accommodate contemporary values, social needs, and changing traditions.

Living constitutionalism has been embraced by the liberals on the Supreme Court today, and in recent times, occasionally by centrist Justices, such as Anthony Kennedy, who retired in 2018.

A good example of the doctrine can be found in Kennedy's majority opinion in Obergefell v Hodges (2015) which recognized a federal constitutional right to same-sex marriage.

Rejecting the originalist approach, Kennedy wrote:

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.

Unfortunately, with the Supreme Court now firmly in the hands of committed originalists and the fantasy world they inhabit, the living Constitution is on life support.

By now, it should be abundantly clear that the insurrection of January 6, 2021, was not a spontaneous uprising perpetrated by an angry horde of amped-up Trump supporters. To the contrary, the insurrection was the culmination of an attempted coup designed to prevent the peaceful transition of power.

But while the insurrection failed, a new coup is brewing and gathering steam. It is being spurred by Trump's relentless promotion of the "big lie" about the stolen election, and by means of massive voter suppression and voter subversion legislation enacted since the election in key Republican-dominated states to guarantee that the GOP regains control over Congress in 2022 and that Trump is restored to the presidency in 2024.

Any lingering doubts about the premeditated nature of the first Trump coup and the events of January 6 have been laid to rest by the public disclosure of two memos written on behalf of the Trump campaign by a conservative lawyer named John Eastman, a former dean of the Chapman University Law School in Orange County, California, who once served as a clerk to Supreme Court Justice Clarence Thomas.

Eastman was one of Trump's top legal advisers in the 2020 presidential race. He appeared at the now-infamous "Save America" rally on January 6 at the National Mall along with the disgraced former president, Rudy Giuliani, Republican Alabama Congressman Mo Brooks, and Donald Trump, Jr. Like the other rally speakers, Eastman delivered a fiery oration, denouncing the congressional certification of the Electoral College vote slated for later that day. Shortly after the rally, a mob of MAGA zealots marched from the mall and stormed the Capitol, as a stunned nation watched on live television.

Although Eastman has vigorously denied any connection between the speeches and the insurrection, his memos offered a blueprint for overturning the election results.

The first Eastman memo, a two-page document, outlined a six-point proposal aimed at pressuring Vice President Mike Pence to nullify the Electoral College votes in seven swing states, with a particular focus on Arizona. In the second memo, totaling six pages, Eastman identified the other targeted states as Georgia, Pennsylvania, Wisconsin, Michigan, Nevada and New Mexico.

Both memos were based on fundamental misinterpretations of the relevant law and the material facts. On the law, Eastman argued incorrectly that the 12th Amendment, ratified in 1804, gives the Vice President the authority to nullify the results of the Electoral College vote count when the results are disputed.

In fact, the 12th Amendment does no such thing, as Eastman himself asserted when he testified before a select committee of the Florida legislature in 2000. Back then, Republicans were concerned that Vice President Al Gore might nullify George W. Bush's victory in the Sunshine State. The role of the Vice President under the 12th Amendment in tabulating the votes of the Electoral College is ceremonial and mandatory. It is limited to announcing the results.

On the facts, Eastman argued that there were legitimate disputes about the election results in the seven swing states because the states had appointed dual slates of electors. In reality, none had appointed competing slates of electors. All had approved single delegations that had ratified Biden's victory.

Still, there was a certain method to the madness of Eastman's memos. If Pence lacked the authority or resolve to declare Trump the winner, Eastman offered a backup plan, also based on the 12th Amendment. The amendment stipulates that when no candidate wins a majority of the Electoral College votes, the task of naming the next president is transferred to the House. The House then conducts a "contingent election," but with each state delegation getting one vote rather than each representative casting an individual vote. Since Republicans would hold 27 House delegations in the newly convened 117th Congress, Eastman concluded Trump would emerge the winner after all.

According to a CNN poll released on September 12, 59% of Republicans still believe the big lie that the 2020 election was stolen. Knowing this, Trump and his acolytes, including many in rightwing media outlets such as Fox, One America and Newsmax, will continue to repeat and amplify the big lie. The goal is to undermine public confidence in future elections generally, and prepare the MAGA base to reject any important elections won by Democrats.

Encouraged by the big lie, Republican-controlled legislatures across the nation have enacted laws that will tilt future elections markedly in favor of the GOP. As of mid-July, according to the Brennan Center for Justice, at least 18 states had adopted laws that make "mail voting and early voting more difficult, impose harsher voter ID requirements, and make faulty voter purges more likely."

Even more troubling, a study compiled by the non-profit organization Protect Democracy has found that at least 16 states, including Texas, Florida, Arizona and Georgia, have enacted laws that shift administration and oversight of elections to Republican-controlled legislatures or highly partisan state election boards. If implemented fully, the new laws could be used to invalidate Democratic votes in the next presidential election, turning a Democratic victory into defeat, and reinstalling Trump to the Oval Office.

The Eastman memos, though a failure the first time around, provide a guide as to how the feat might be accomplished the second time at bat.

The gravity of the situation cannot be overstated. As Robert Kagan, a senior fellow at the Brookings Institute and a one-time advisor to John McCain, wrote in a Washington Post column published on September 23:

"The United States is heading into its greatest political and constitutional crisis since the Civil War, with a reasonable chance over the next three to four years of incidents of mass violence, a breakdown of federal authority, and the division of the country into warring red and blue enclaves. The warning signs may be obscured by the distractions of politics, the pandemic, the economy and global crises, and by wishful thinking and denial. But about these things there should be no doubt:

"First, Donald Trump will be the Republican candidate for president in 2024. The hope and expectation that he would fade in visibility and influence have been delusional. He enjoys mammoth leads in the polls; he is building a massive campaign war chest; and at this moment the Democratic ticket looks vulnerable. Barring health problems, he is running.

"Second, Trump and his Republican allies are actively preparing to ensure his victory by whatever means necessary. Trump's charges of fraud in the 2020 election are now primarily aimed at establishing the predicate to challenge future election results that do not go his way...

"Meanwhile, the amateurish "stop the steal" efforts of 2020 have given way to an organized nationwide campaign to ensure that Trump and his supporters will have the control over state and local election officials that they lacked in 2020."

The first step in thwarting the new Trump coup is to recognize that it is happening. The second is to summon the will and determination to stop it. At a minimum, we should demand that the Democrats end the Senate filibuster and pass the John Lewis Voting Rights Advancement Act.

Our democracy, with all its flaws and many shortcomings, hangs in the balance.

Donald Trump was no ordinary conservative American president. Far from it.

But how should we describe his presidency and the Make America Great Again political movement he spawned? Is it sufficient to refer to Trump and his MAGA supporters as anti-democratic or authoritarian, as many in the liberal mainstream press have written for the past five years?

I don't think so.

I believe that is a wholly inadequate and ultimately self-defeating response. We cannot afford to label Trump as just another demagogue or to refer to the MAGA movement as just another rightwing populist upsurge if we hope to preserve American democracy.

It's past time to call Trump and his movement what they are: fascist.

Trump was the first American fascist president. And he remains a fascist to this day.

I was among the first opinion writers to expose the unique dangers Trump posed to democracy and the rule of law. I was among the first to refer to him explicitly as a fascist. I was also among the first commentators to report on the views of leading mental health-experts who described Trump as a malignant narcissist.

I sounded these warnings in opinion columns, beginning in 2015, published by such outlets as Truthdig, The Progressive Magazine, AlterNet, Raw Story, Salon, The National Memo, Bill Moyers.com, and many others.

What is Fascism?

Any rational discussion has to begin with a definition, and when it comes to fascism, there are many to examine.

Although it is an emotionally loaded and often misused term, fascism is as real today as a political and cultural force, a set of core beliefs and a mode of governance as it was when Benito Mussolini founded the Italian Fascist Party in 1919 and declared himself dictator six years later.

As the celebrated Marxist playwright Bertolt Brecht wrote in 1935, fascism "is a historic phase of capitalism … the nakedest, most shameless, most oppressive and most treacherous form of capitalism." Trumpism, along with its international analogs in Brazil, India and Western Europe, neatly accords with Brecht's description.

Another instructive definition is the one proffered by political scientist Robert Paxton in his classic study " The Anatomy of Fascism" (Harvard University Press, 2004):

"Fascism may be defined as a form of political behavior marked by obsessive preoccupation with community decline, humiliation, or victimhood and by compensatory cults of unity, energy, and purity, in which a mass-based party of committed nationalist militants, working in uneasy but effective collaboration with traditional elites, abandons democratic liberties and pursues with redemptive violence and without ethical or legal restraints goals of internal cleansing and external expansion."

Trump and Trumpism similarly embody the 14 common factors of fascism identified by the great writer Umberto Eco in his 1995 essay, Ur Fascism.

Nor is fascism a foreign phenomenon restricted to South American banana republics or failed European states. As University of London professor Sarah Churchwell explained in a June 22, 2020 essay published in the New York Review of Books, fascism has deep roots in the United States, spanning the decades from the resurgence of the Ku Klux Klan in the 1920s to the rise of the German-American Bund in the 1930s, the ascendance of Depression-era demagogues like Huey Long, and the election of Trump in 2016.

Churchwell's article is aptly titled, "American Fascism: It Has Happened Here." In it, she offers a working definition of fascism, noting that fascist movements, both past and present in America and abroad, are united by "conspicuous features [that] are recognizably shared." These include:

"[N]ostalgia for a purer, mythic, often rural past; cults of tradition and cultural regeneration; paramilitary groups; the delegitimizing of political opponents and demonization of critics; the universalizing of some groups as authentically national, while dehumanizing all other groups; hostility to intellectualism and attacks on a free press; anti-modernism; fetishized patriarchal masculinity; and a distressed sense of victimhood and collective grievance. Fascist mythologies often incorporate a notion of cleansing, an exclusionary defense against racial or cultural contamination, and related eugenicist preferences for certain 'bloodlines' over others."

Trump's Unique Brand of American Fascism

Looking back on the anti-immigrant rhetoric and scapegoating Trump used in the 2016 presidential campaign, we can see these features at work. We can also see them in his desperate efforts to retain power after losing the 2020 presidential election, in the January 6 insurrection and in his continued adherence to the "big lie" of the stolen election. These are only some of the most obvious signposts of a new American form of fascism.

The good news is that more and more influential voices have come to realize and recognize Trump as a fascist.

In a January 2021 Newsweek article, Professor Paxton wrote:

"I resisted for a long time applying the fascist label to Donald J. Trump. He did indeed display some telltale signs. In 2016, a newsreel clip of Trump's plane taxiing up to a hangar where cheering supporters awaited reminded me eerily of Adolf Hitler's electoral campaign in Germany in July 1932, the first airborne campaign in history, where the arrival of the Führer's plane electrified the crowd. Once the rally began, with Hitler and Mussolini, Trump mastered the art of back-and-forth exchanges with his enraptured listeners. There was the threat of physical violence ("lock her up!"), sometimes leading to the forceful ejection of hecklers. The Proud Boys stood in convincingly for Hitler's Storm Troopers and Mussolini's squadristi. The MAGA hats even provided a bit of uniform. The America First" message and the leader's arrogant swagger fit the fascist model….

"Trump's incitement of the invasion of the Capitol on January 6, 2020 removes my objection to the fascist label. His open encouragement of civic violence to overturn an election crosses a red line. The label now seems not just acceptable but necessary."

In a July 2021 article in The Atlantic, David Frum, a longtime Republican and former speechwriter for George W. Bush, put it this way:

"Trump's no Hitler, obviously. But they share some ways of thinking. The past never repeats itself. But it offers warnings. It's time to start using the F-word again, not to defame—but to diagnose."

Psychologist Mary Trump, the disgraced ex-president's niece, unabashedly uses the fascist label to describe her uncle, referring him as such in a September 2021 interview with Business Insider:

"He is a fascist. But he probably doesn't know what fascist means.

"He thinks he deserves all the power in the world just because of who he is. In his mind, he's always at the center of the universe and thinks he should be deferred to even though he's ignorant, the weakest, and the least intellectually curious person I've ever met."

It's time for more of us to recognize, denounce and reject Trump and his most ardent and violent MAGA acolytes for what they: a fascist plague that threatens everything we hold near and dear.

One of the first lessons attorneys involved in high-stakes litigation learn is that it sometimes pays not to say the quiet part out loud, lest your client's true intentions be revealed.

Michael A. Carvin, a highly respected partner in the powerful Jones Day law firm based in Washington, D.C., may have forgotten this lesson during the oral arguments conducted by the Supreme Court on March 2 in a pair of appeals from Arizona involving Section 2 of the Voting Rights Act (VRA). In a shocking comment made toward the end of his presentation, Carvin revealed the Republican Party's entrenched and dedicated commitment to partisan advantage and voter suppression. In the process, however, Carvin may have unwittingly opened the door to abolishing the legislative filibuster and enacting H.R. 1, the landmark omnibus voting rights bill entitled the "For the People Act of 2021" that has passed the House and is now pending before the Senate.

The Arizona cases don't concern H.R. 1 or the filibuster directly. They involve a 2016 state statute that criminalizes the collection of ballots by third parties (a practice called "ballot harvesting"); and a state policy that strictly prohibits voters from casting ballots outside of their registered precincts.

Representing the Arizona Republican Party, Carvin argued that neither the statute nor the out-of-precinct prohibition runs afoul of Section 2, which bars racial discrimination in voting. Carvin contended Arizona's law and practices should be upheld because they are racially neutral and don't deny anyone the opportunity to vote.

Attorneys representing the Democratic National Committee countered that Arizona's practices disproportionately burden Native American, Latino and Latina, and Black voters, who have higher rates of residential mobility than white voters (causing them to move out of their assigned precincts more frequently than white voters), and who are more likely to rely on neighbors and friends to deliver absentee ballots to polling places because they don't own cars or have access to dependable public transportation to vote in person.

Although both the statute and the precinct rule in fact depress minority voter turnout, Carvin and the GOP are likely to prevail in the Supreme Court. Despite the high court's rejection of Donald Trump's baseless voter fraud lawsuits to overturn the results of the presidential election, the court has an abysmal record on voting rights in general.

In 2013, the court gutted Sections 4 and 5 of the VRA in the infamous case of Shelby County v. Holder in a 5-4 majority opinion written by Chief Justice John Roberts. Prior to Shelby, states and localities with histories of voting discrimination had to obtain advance approval (a process called "preclearance") from either the Justice Department or a federal court sitting in Washington, D.C., before implementing changes to voting procedures.

Post Shelby, the preclearance requirement is gone. Disadvantaged voters now have to initiate and fund lawsuits challenging unfair practices under Section 2 of the VRA. The Arizona cases threaten to gut Section 2 as well.

In the aftermath of Shelby, voter suppression tactics have proliferated across the country. They range from restrictive voter ID laws and extreme gerrymandering to the closing of polling stations and limits placed on early and absentee voting. If anything, the pace of voter suppression is accelerating in the wake of Trump's defeat. Since the election, according to the Brennan Center for Justice, Republican lawmakers in 43 states have "carried over, prefiled, or introduced 253 bills with provisions that restrict voting access."

During his argument in the Arizona cases, Carvin unintentionally confirmed the need for enacting H.R. 1 and for abolishing the filibuster in a colloquy with Justice Amy Coney Barrett.

"What's the interest of the Arizona RNC here in keeping, say, the out-of-precinct voter ballot disqualification rules on the books?" Barrett asked.

"Because it puts us at a competitive disadvantage relative to Democrats," Carvin answered. "Politics is a zero-sum game, and every extra vote they get through unlawful interpretations of Section 2 hurts us. It's the difference between winning an election 50 to 49 and losing an election 51 to 50."

As a purely legal matter, Carvin wasn't wrong to point out the partisan interests served by Arizona's out-of-precinct and vote-harvesting prohibitions. Just two years ago, the Supreme Court handed down a pair of decisions, declaring that partisan gerrymandering—the practice of dividing up a state's electoral districts so as to entrench the party in power—was a "nonjusticiable" issue outside of the jurisdiction of the federal courts.

Politically, however, Carvin's answer amounted to an admission that for real-world purposes, the challenged Arizona practices aren't neutral at all. To the contrary, they were crafted for the purpose of undermining the political influence of minority populations who tend to vote Democratic.

Although the word "filibuster" was not uttered during the oral arguments on the Arizona cases, Senate Democrats will have little choice but to take heed of Carvin's remarks and marshal the courage and unity needed to pass H.R. 1 over a Republican filibuster should the Supreme Court rule in the GOP's favor and adopt another crippling interpretation of the VRA.

Abolishing the filibuster would be an accomplishment of historic proportions. The filibuster has been part of Senate procedure since the 19th century as a means of thwarting majority rule. In more recent times, it has been used by segregationists and obstructionists to block anti-lynching and civil rights legislation as well as a proposed constitutional amendment to replace the electoral college with a popular vote for president.

In its current form, the filibuster operates pursuant to Senate Rule XXII, which stipulates that a vote of three-fifths of the upper chamber is required for "cloture" (ending debate) on any pending legislation or resolution. To complicate matters further, rule XXII also specifies that invoking cloture on a motion to change Senate rules requires a two-thirds vote.

Given these thresholds, it is extremely doubtful that rule XXII and the filibuster will be repealed entirely. What can be done, however, by a simple majority vote is what has come to be called the "nuclear option," a complex parliamentary maneuver that allows a majority of the Senate to pass legislation on a specific issue. The nuclear option was deployed by Senate Democrats in 2013 to end the filibuster and the 60-vote cloture rule on lower-court federal judicial nominations, and by Senate Republicans in 2017 to end the cloture rule and the filibuster for nominees to the Supreme Court.

The nuclear option can and must be used again to avoid a Senate filibuster on H.R.1. If ratified, H.R. 1 would amend campaign finance laws, limit partisan gerrymandering, and create new ethics rules for federal officials and Supreme Court justices, among other reforms. It also calls on Congress to restore the full VRA.

To invoke the nuclear option on H.R. 1 and voting rights, maximum public pressure must be brought to bear on the Senate's two most conservative Democrats—Joe Manchin of West Virginia and Kyrsten Sinema of Arizona—to fall in line, lest the Democrats lose control of both the House and Senate not only in 2022, but for years to come. Arizona is just the tip of the voter-suppression iceberg.

Fortunately, the filibuster is not rooted in the Constitution. It was created by the Senate, and it can be ended or modified by the Senate. To quote a recent column penned by Salon writer Amanda Marcotte, Democrats won't just be "failing themselves if they don't end the filibuster"; they will be "failing democracy itself."

-- --

Bill Blum is a retired judge and a lawyer in Los Angeles. He is a lecturer at the University of Southern California Annenberg School for Communication. He writes regularly on law and politics and is the author of three widely acclaimed legal thrillers: Prejudicial Error, The Last Appeal, and The Face of Justice.

This article was produced by the Independent Media Institute.

Like a mob boss looking for payback, Donald Trump wanted the Supreme Court to do him two favors heading into the November election: keep him in power and keep him out of jail. To its everlasting credit, the court quickly declined to deliver on the first. Even though Trump had nominated three arch-conservatives to the bench—Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett—the court rejected his baseless challenges to the results of the election.

It took the court far too long to screw up the courage to decline the second favor, but in a one-sentence order issued on February 22, the court dismissed an emergency petition Trump's lawyers had filed last October to stop Manhattan District Attorney Cyrus Vance Jr. from enforcing a critical grand jury subpoena issued to the former president's accounting firm—Mazars USA, LLP—as part of a wide-ranging criminal investigation involving Trump's business practices.

Pending the court's ruling on the petition, Vance had agreed to pause enforcement of the subpoena. And in the meantime, as the court dithered, New York's five-year statute of limitations continued to tick away, threatening to derail the entire probe.

The investigation can now move forward, full speed.

Of all the potential avenues for indicting Trump now that he is out of office and has lost the immunity from prosecution that comes with the presidency, Vance's probe, which began in 2018, offers the most immediate promise. Although New York grand jury proceedings are secret, it has been widely reported that Vance is investigating Trump not only for the hush money paid to pornographic film star Stephanie Clifford, aka "Stormy Daniels," and onetime Playboy Magazine model Karen McDougal, but also to determine if other aspects of Trump's private financial dealings have violated state fraud and income tax laws.

The Mazars subpoena is a key component of Vance's inquiry. It demands multiple years of Trump's personal and corporate federal and state tax returns and other financial documentation, dating back to 2011.

As some commentators have noted, information from Mazars could help prove that the Trump Organization used deceptive accounting techniques to inflate the value of assets when applying for bank loans and insurance while understating values to reduce tax bills. Documents from Mazars could also help establish that Trump or members of his family acted with the knowledge and intent needed to prove the commission of financial crimes.

Usually, the Supreme Court rules on emergency petitions expeditiously, often within a matter of weeks, or even days. So, what was behind the inaction in this case? Was there a legitimate reason for the inordinate delay, or were political considerations in play?

The court itself isn't saying. Unlike elected politicians, the justices don't issue press releases or regularly speak to the media. In the absence of an official explanation, the reason for the delay appears to lie in the ideological orientation of the court, which has shifted sharply to the right since the death of Justice Ruth Bader Ginsburg last September.

The court's conservatives now outnumber its liberals, 6-3. They determine the substantive outcome of most cases as well as the timing of decisions. But despite the backbone they displayed in rebuffing Trump's 2020 election complaints, the conservatives may not have been willing to abandon Trump to deal with Vance and his prosecutorial team while he was still president.

Whatever the reason, there was no good excuse for the more than four-month delay on the Mazars subpoena, especially because the court was already familiar with the subpoena and the facts and issues it raised. Indeed, the subpoena was the subject of the court's historic 7-2 decision last July, which recognized the authority of a state grand jury to demand documents from a sitting president.

Writing for the majority in last year's case, Chief Justice John Roberts reached deep into the history of U.S. constitutional law, as I have noted before, citing the legendary Chief Justice John Marshall's approval of subpoenas issued to President Thomas Jefferson in the 1807 treason trial of Aaron Burr. Roberts' opinion was also layered with repeated references to the cases of United States v. Nixon and Clinton v. Jones.

In the process, Roberts rejected both the claim raised by Trump's private attorneys that sitting presidents enjoy "absolute immunity" from state criminal investigations, as well as an alternative contention advanced by the Trump Justice Department that state prosecutors must demonstrate a "heightened" standard of need before gaining access to the president's records.

Roberts and the majority, however, stopped short of ordering compliance with the subpoena. Instead, they remanded the case to the lower federal courts to permit Trump's attorneys to argue the subpoena was overly broad in scope and issued in bad faith. Afterward, in short order, both the federal district court judge assigned to the litigation in Manhattan as well as the 2nd Circuit Court of Appeals upheld the subpoena, setting the stage for the Supreme Court to resolve the matter once and for all.

Lacking any sound basis to invalidate the subpoena, Trump's attorneys were obviously counting on continued delays to keep their client out of jail. But despite the rejection of their emergency petition, they may not be done trying yet.

According to CNN, the disgraced ex-president's lawyers are preparing to file a new petition with the Supreme Court, requesting a full hearing with oral arguments and a new briefing schedule to review the 2nd Circuit's ruling. If granted, such a petition could impose additional delays and restrictions on Vance's investigation.

Trump, for his part, has responded to the court's order in typical fashion, releasing a statement lambasting the order as a continuation of the "witch hunt" against him. "The Supreme Court never should have let this 'fishing expedition' happen, but they did," the statement asserted. "This is something which has never happened to a President before, it is all Democrat-inspired in a totally Democrat location, New York City and State, completely controlled and dominated by a heavily reported enemy of mine, Governor Andrew Cuomo."

To restore the public's faith in judicial independence, the court should reject any further efforts to undermine, limit or suspend the Vance investigation. In the aftermath of Trump's shameful acquittal in his second Senate impeachment trial, the court should stand aside and force Trump to face accountability.

Now a private citizen, Donald Trump deserves no more deference or protection from the judiciary than any other criminal suspect. It's high time to bring him to justice. Nothing less than the rule of law is at stake.

Bill Blum is a retired judge and a lawyer in Los Angeles. He is a lecturer at the University of Southern California Annenberg School for Communication. He writes regularly on law and politics and is the author of three widely acclaimed legal thrillers: Prejudicial Error, The Last Appeal, and The Face of Justice.

This article was produced by the Independent Media Institute.

Anytime your lawyers walk out on the eve of the most important trial of your life, you should be in big trouble. Except, of course, if you're Donald John Trump and you're facing your second impeachment trial in the U.S. Senate, where the majority of Republicans are either spineless sycophants or outright authoritarians who will never vote to convict you, no matter how compelling the evidence.

That's exactly where Trump finds himself as his latest trial is slated to begin on Feb. 9. Five members of Trump's impeachment legal team resigned a little more than a week before the trial, ostensibly over disputes about trial strategy. According to several news outlets, Trump pressured the lawyers to center his defense on the widely debunked claims of election fraud he persists in peddling. The attorneys wanted to concentrate on constitutional issues.

The legal exodus left Trump scrambling to hire replacements and even boasting to aides that he could represent himself. He has since hired another slate of lawyers headed by two attorneys who boast strong right-wing credentials and, like Trump, have a flair for publicity.

One of the newcomers, David Schoen of Montgomery, Alabama, previously represented Trump associate Roger Stone, and met with Jeffrey Epstein in prison nine days before the accused sex trafficker's death. Epstein reportedly asked Schoen to represent him, and Schoen has since declared he believes Epstein's death was not a suicide.

The other new lead counsel is Bruce Castor of Pennsylvania, who once served as the district attorney of Montgomery County, a suburb of Philadelphia. In 2005, Castor made headlines when he declined to bring sexual assault charges against comedian Bill Cosby.

Ordinarily, a defendant buffeted by such a last-minute shuffle of attorneys might be expected to "lose big time," to invoke one of Trump's favorite catchphrases. But not in this case.

Despite the internal turmoil, Trump's acquittal appears all but certain. On Jan. 26, 45 Senate Republicans voted in favor of a procedural motion that would have dismissed the impeachment case against Trump on the legally dubious theory that the Constitution restricts impeachment to current officeholders. Although 55 senators, including five Republicans, voted to allow the trial to proceed, convicting Trump will require a two-thirds vote of the upper chamber, and that, at least for now, seems unattainable.

Sensing defeat, some Democrats have already started to waver. Virginia Sen. Tim Kaine has announced plans to file a censure motion against Trump as an alternative to impeachment. Other Senate Democrats want to go ahead with the trial, but want to keep it as short as one week.

The hand-wringing, while predictable, is unwarranted and shortsighted. Above all, it fails to meet the vital challenge of holding Trump accountable for his plot to subvert democracy.

The article of impeachment lodged against Trump could not be more ominous. It charges him with "incitement of insurrection" for the infamous speech he delivered outside the White House on Jan. 6, exhorting an angry and armed throng of white supremacists, neo-Nazis, QAnon fanatics, and MAGA zealots to march to the U.S. Capitol building and "fight like hell" to prevent the certification of Joe Biden's Electoral College victory, and in effect, overthrow the government.

In addition, the article maintains that: "In the months preceding the Joint Session [of Congress on Jan. 6], President Trump repeatedly issued false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the American people or certified by State or Federal officials."

Leaving no doubt about Trump's intentions, the article also alleges:

"President Trump's conduct on January 6, 2021, followed his prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election. Those prior efforts included a phone call on January 2, 2021, during which President Trump urged the secretary of state of Georgia, Brad Raffensperger, to 'find' enough votes to overturn the Georgia Presidential election results and threatened Secretary Raffensperger if he failed to do so."

Having come this far, Democrats have no choice but to mount the strongest possible evidentiary showing against Trump. Whether the trial takes a week or longer, and whether or not it features live witnesses, the House impeachment managers who will try the case against Trump must demonstrate, in the words of Rep. Liz Cheney, that "The President of the United States summoned this mob, assembled the mob, and lit the flame of this attack. Everything that followed was his doing."

On Feb. 2, the House managers filed an 80-page pretrial brief, promising to prove Trump's responsibility for the Capitol riot. Trump's new legal team filed a skimpy 14-page response, denying Trump caused the riot, contending the Senate cannot convict a former president, and arguing weakly that anything Trump said on Jan. 6 or about election fraud generally was protected by the First Amendment. (As I have explained elsewhere, the First Amendment does not in fact protect speech aimed at inciting insurrection.)

As a technical matter, once the trial commences, establishing Trump's culpability should be easy. Hours of publicly available videos can be assembled and collated to document Trump's plan to retain power at all costs.

Starting in December, Trump began to urge supporters to come to Washington on Jan. 6, tweeting on Dec. 19 that there would be a "[b]ig protest," and inviting them to "Be there, will be wild!" Continuing the theme of impending insurrection in a tweet sent out the day after Christmas, he wrote, "If a Democrat Presidential Candidate had an Election Rigged & Stolen… the Democrat Senators would consider it an act of war, and fight to the death." Referring specifically to Jan. 6 at a rally in Georgia on Jan. 4 to support Republican Senate candidates Kelly Loeffler and David Perdue, he pledged, "We're going to take what they did to us on Nov. 3. We're going to take it back."

The House managers also have access to video recordings that show, in real time, that many in the crowd on Jan. 6 thought Trump was urging them to occupy the Capitol by force, and that they were following his orders. And then, of course, there is ample video footage of the actual destruction wreaked by the mob immediately following Trump's speech.

Democrats who need a shot of courage to move forward against the odds must take a broader historical view of the upcoming impeachment trial. It is not just the Senate that will hear the evidence against Trump, but the American people as well. And in a very real sense, it will not just be Trump on trial, but the racist and fascist insurgency he has unleashed. That insurgency will survive Trump and remain a clear and present danger to the nation for years to come. It must be vanquished and crushed by all available legal means.

Instead of anticipating just another legal loss on impeachment, Democrats should take a cue from the civil rights movement of the 1950s and '60s, which suffered many legal setbacks along the way to transformational victories.

In particular, Democrats would do well to recall the case of Emmett Till, the 14-year-old black teenager who was kidnapped, mutilated and murdered in Mississippi in 1955 for allegedly flirting with a white woman. Two white men were indicted by a Tallahatchie County grand jury for killing Till. But despite the overwhelming evidence against them, the defendants were acquitted by an all-white, all-male jury that deliberated for a mere 67 minutes.

The verdict, though cruel and outrageous, surprised no one. The defendants were never made to pay for their crimes — and in fact, later admitted their guilt in an interview with Look magazine — but their acquittal became a catalyst for subsequent advances in civil rights.

So, too, can the Democrats link impeachment to the wider struggle against fascism, and in the process turn defeat, if it comes, into a larger long-term triumph. But only if they have the necessary vision and, most essentially, the necessary courage.

Anytime your lawyers walk out on the eve of the most important trial of your life, you should be in big trouble. Except, of course, if you're Donald John Trump and you're facing your second impeachment trial in the U.S. Senate, where the majority of Republicans are either spineless sycophants or outright authoritarians who will never vote to convict you, no matter how compelling the evidence.

That's exactly where Trump finds himself as his latest trial is slated to begin on February 9. Five members of Trump's impeachment legal team resigned a little more than a week before the trial, ostensibly over disputes about trial strategy. According to several news outlets, Trump pressured the lawyers to center his defense on the widely debunked claims of election fraud he persists in peddling. The attorneys wanted to concentrate on constitutional issues.

The legal exodus left Trump scrambling to hire replacements and even boasting to aides that he could represent himself. He has since hired another slate of lawyers headed by two attorneys who boast strong right-wing credentials and, like Trump, have a flair for publicity.

One of the newcomers, David Schoen of Montgomery, Alabama, previously represented Trump associate Roger Stone, and met with Jeffrey Epstein in prison nine days before the accused sex trafficker's death. Epstein reportedly asked Schoen to represent him, and Schoen has since declared he believes Epstein's death was not a suicide.

The other new lead counsel is Bruce Castor of Pennsylvania, who once served as the district attorney of Montgomery County, a suburb of Philadelphia. In 2005, Castor made headlines when he declined to bring sexual assault charges against comedian Bill Cosby.

Ordinarily, a defendant buffeted by such a last-minute shuffle of attorneys might be expected to "lose big time," to invoke one of Trump's favorite catchphrases. But not in this case.

Despite the internal turmoil, Trump's acquittal appears all but certain. On January 26, 45 Senate Republicans voted in favor of a procedural motion that would have dismissed the impeachment case against Trump on the legally dubious theory that the Constitution restricts impeachment to current officeholders. Although 55 senators, including five Republicans, voted to allow the trial to proceed, convicting Trump will require a two-thirds vote of the upper chamber, and that, at least for now, seems unattainable.

Sensing defeat, some Democrats have already started to waver. Virginia Senator Tim Kaine has announced plans to file a censure motion against Trump as an alternative to impeachment. Other Senate Democrats want to go ahead with the trial, but want to keep it as short as one week.

The hand-wringing, while predictable, is unwarranted and shortsighted. Above all, it fails to meet the vital challenge of holding Trump accountable for his plot to subvert democracy.

The article of impeachment lodged against Trump could not be more ominous. It charges him with "incitement of insurrection" for the infamous speech he delivered outside the White House on January 6, exhorting an angry and armed throng of white supremacists, neo-Nazis, QAnon fanatics, and MAGA zealots to march to the U.S. Capitol building and "fight like hell" to prevent the certification of Joe Biden's Electoral College victory, and in effect, overthrow the government.

In addition, the article maintains that: "In the months preceding the Joint Session [of Congress on January 6], President Trump repeatedly issued false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the American people or certified by State or Federal officials."

Leaving no doubt about Trump's intentions, the article also alleges:

"President Trump's conduct on January 6, 2021, followed his prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election. Those prior efforts included a phone call on January 2, 2021, during which President Trump urged the secretary of state of Georgia, Brad Raffensperger, to 'find' enough votes to overturn the Georgia Presidential election results and threatened Secretary Raffensperger if he failed to do so."

Having come this far, Democrats have no choice but to mount the strongest possible evidentiary showing against Trump. Whether the trial takes a week or longer, and whether or not it features live witnesses, the House impeachment managers who will try the case against Trump must demonstrate, in the words of Representative Liz Cheney, that "The President of the United States summoned this mob, assembled the mob, and lit the flame of this attack. Everything that followed was his doing."

On February 2, the House managers filed an 80-page pretrial brief, promising to prove Trump's responsibility for the Capitol riot. Trump's new legal team filed a skimpy 14-page response, denying Trump caused the riot, contending the Senate cannot convict a former president, and arguing weakly that anything Trump said on January 6 or about election fraud generally was protected by the First Amendment. (As I have explained elsewhere, the First Amendment does not in fact protect speech aimed at inciting insurrection.)

As a technical matter, once the trial commences, establishing Trump's culpability should be easy. Hours of publicly available videos can be assembled and collated to document Trump's plan to retain power at all costs.

Starting in December, Trump began to urge supporters to come to Washington on January 6, tweeting on December 19 that there would be a "[b]ig protest," and inviting them to "Be there, will be wild!" Continuing the theme of impending insurrection in a tweet sent out the day after Christmas, he wrote, "If a Democrat Presidential Candidate had an Election Rigged & Stolen… the Democrat Senators would consider it an act of war, and fight to the death." Referring specifically to January 6 at a rally in Georgia on January 4 to support Republican Senate candidates Kelly Loeffler and David Perdue, he pledged, "We're going to take what they did to us on November 3. We're going to take it back."

The House managers also have access to video recordings that show, in real time, that many in the crowd on January 6 thought Trump was urging them to occupy the Capitol by force, and that they were following his orders. And then, of course, there is ample video footage of the actual destruction wreaked by the mob immediately following Trump's speech.

Democrats who need a shot of courage to move forward against the odds must take a broader historical view of the upcoming impeachment trial. It is not just the Senate that will hear the evidence against Trump, but the American people as well. And in a very real sense, it will not just be Trump on trial, but the racist and fascist insurgency he has unleashed. That insurgency will survive Trump and remain a clear and present danger to the nation for years to come. It must be vanquished and crushed by all available legal means.

Instead of anticipating just another legal loss on impeachment, Democrats should take a cue from the civil rights movement of the 1950s and '60s, which suffered many legal setbacks along the way to transformational victories.

In particular, Democrats would do well to recall the case of Emmett Till, the 14-year-old black teenager who was kidnapped, mutilated and murdered in Mississippi in 1955 for allegedly flirting with a white woman. Two white men were indicted by a Tallahatchie County grand jury for killing Till. But despite the overwhelming evidence against them, the defendants were acquitted by an all-white, all-male jury that deliberated for a mere 67 minutes.

The verdict, though cruel and outrageous, surprised no one. The defendants were never made to pay for their crimes—and in fact, later admitted their guilt in an interview with Look magazine—but their acquittal became a catalyst for subsequent advances in civil rights.

So, too, can the Democrats link impeachment to the wider struggle against fascism, and in the process turn defeat, if it comes, into a larger long-term triumph. But only if they have the necessary vision and, most essentially, the necessary courage.

Bill Blum is a retired judge and a lawyer in Los Angeles. He is a lecturer at the University of Southern California Annenberg School for Communication. He writes regularly on law and politics and is the author of three widely acclaimed legal thrillers: Prejudicial Error, The Last Appeal, and The Face of Justice.

Donald Trump is the only American president to be impeached twice. This time, he stands accused in a single article of impeachment of "incitement of insurrection" for delivering an incendiary speech on January 6 to an angry mob of supporters, sparking them to storm the U.S. Capitol building to prevent the certification of Joe Biden's Electoral College victory.

Trump will now be tried in the Senate. There, he will be given the opportunity to defend his shameless rhetoric and behavior. Among other claims, he will likely mount a defense under the First Amendment and argue that his speech was constitutionally protected by the Supreme Court's landmark 1969 decision in Brandenburg v. Ohio.

The Senate can be expected to consider Trump's position carefully and fully. But at the end of the proceeding, no matter who leads his legal team, any impeachment defense based on Brandenburg and the First Amendment will be—to put it in the vernacular—complete and utter garbage.

Clarence Brandenburg was a small-time bigot who owned a television repair shop in the Village of Arlington Heights, a tiny hamlet roughly 11 miles north of Cincinnati, Ohio. He was also a Ku Klux Klan leader.

On June 28, 1964, at Brandenburg's invitation, a reporter and a cameraperson from a Cincinnati TV station attended a Klan rally held on a nearby farm. Footage from the rally showed 12 hooded figures gathered around a burning cross, shouting various epithets, including: "This is what we are going to do to the niggers," "Send the Jews back to Israel," "Save America," "Bury the niggers," "Give us our state [sic] rights," and "Freedom for the whites."

Brandenburg was also filmed, saying:

"The Klan has more members in the State of Ohio than does any other organization. We're not a revengent [sic] organization, but if our President, our Congress, our Supreme Court, continues [sic] to suppress the white, Caucasian race, it's possible that there might have to be some revengeance [sic] taken."
"We are marching on Congress July the Fourth, four hundred thousand strong. From there, we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank you."

Brandenburg was subsequently arrested and convicted of violating Ohio's criminal syndicalism law, which made it a crime to advocate violence as a means of achieving political reform. He was fined and sentenced to prison.

Five years later, the Supreme Court reversed his conviction. In its decision, the court articulated a new test for determining the constitutionality of subversive speech, holding that the First Amendment protects advocating the use of force or lawbreaking "except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

As should be obvious to anyone this side of Rudy Giuliani, Brandenburg's prosecution was entirely different from the incitement case against Trump, both on the facts and the law.

Unlike Trump, Brandenburg never threatened imminent action of any kind. His diatribes were racist and repugnant, but also the stuff of addlebrained, semi-grammatical fantasy. Brandenburg had no minions at his command, let alone the 400,000 he had conjured in his speech. He posed no immediate danger to anyone.

Trump, by contrast, has millions of dedicated supporters at his disposal. In the first presidential debate in September, he told the Proud Boys to "stand back, and stand by." Starting in December, he began to urge his supporters to come to Washington on January 6, tweeting on December 19 that there would be a "[b]ig protest," and inviting them to "Be there, will be wild!" Referring to the protest again at a rally in Georgia on January 4, he pledged, "We're going to take what they did to us on November 3. We're going to take it back."

The MAGA zealots, white nationalists, and neofascists who showed up to hear Trump on January 6 were ready, willing and able to do his bidding. They were treated to a rambling speech filled with violent imagery, as the sitting president of the United States urged his supporters to march down Pennsylvania Avenue to the Capitol and to "fight like hell" to "stop the steal" of the election. He even falsely promised to march alongside them, proclaiming, "I'll be there with you."

While Trump never mentioned specific acts of violence and only once, in a single brief mention, did he tell his supporters "to peacefully… make your voices heard," the speech as a whole was a call to imminent lawless action, as many in the mob construed it. Both the Washington Post and the New York Times have reported that some of the Capitol marauders actually thought they were acting on direct orders from Trump.

In inciting the mob, Trump arguably violated two federal statutes that prohibit insurrection and rebellion against the United States as well as seditious conspiracy.

Whether or not Trump is ever criminally prosecuted, he without question committed an impeachable offense. The history of American impeachment clearly establishes that such offenses may encompass both criminal and noncriminal conduct. According to the House of Representatives' procedural practice manual, "Less than one-third of all the articles [of impeachment] the House has adopted have explicitly charged the violation of a criminal statute or used the word 'criminal' or 'crime' to describe the conduct alleged."

In Federalist Paper No. 65, Alexander Hamilton described impeachable offenses as "those… which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself." [emphasis in original]

The First Amendment cannot be invoked to save Trump from an abuse of power so egregious and deadly. To do so would be to turn the amendment on its head. As Joshua Matz and Norm Eisen argued in a January 13 op-ed in Politico, "the Free Speech Clause exists to protect private citizens from the government, not to protect government officials from accountability for their own abusive statements."

It's now up to the Senate to sit in judgment on Trump's defilement of the Constitution. To borrow a line from the Broadway musical Hamilton, each and every senator should know, "History has its eyes on you."