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The Supreme Court won't restore voting rights -- but this might

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 DemocratsJoe 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."

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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.

Donald Trump wanted two favors from the Supreme Court he helped build

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.

Odds of conviction are poor — but Democrats must stay strong on impeachment

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.

Here's how Democrats can turn Trump's inevitable impeachment acquittal into a victory

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.

There's a key flaw in a First Amendment defense for Trump's incitement of Capitol insurrection

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."

Here's how the rest of Trump's desperate effort to stay in power will play out

Donald Trump isn't about to concede the presidential election to Joe Biden. Not now, and seemingly, not ever.

Anyone who has followed Trump closely knows two things about the man that make it relatively easy to anticipate his next move. The first is that, ideologically, Trump is a fascist who has no regard for democracy. The second is that, psychologically, he is a malignant narcissist who suffers from a toxic stew of narcissism, paranoia, antisocial personality disorder and sadism. As a result, it is virtually impossible for him to acknowledge, much less accept, failure.

Trump also faces the prospect of being prosecuted for a variety of state and federal felonies upon leaving office. And while he can avoid federal jeopardy with a pardon, to do so he would either have to resign and permit Mike Pence, as his successor for the duration of the lame-duck period, to do the honors or undertake the legally dubious step of issuing a pardon to himself. Even then, he would remain exposed to the ongoing probe conducted by Manhattan District Attorney Cyrus Vance into allegations of tax, business and insurance fraud under New York law.

How, then, does a fascist and a malignant narcissist who faces jail stave off defeat? Having lost both the popular vote and, more importantly, the tally in the Electoral College, and after being rebuked by numerous state and federal courts, including the Supreme Court, Trump is moving to his next option—staging what would amount to a coup d'état, invoking the complex provisions of the 12th Amendment, when Congress meets in a joint session on January 6 to confirm the winner of the presidential race.

That there will be an attempted coup is no longer a matter of speculation. In an appearance on "Fox & Friends" on December 14, Stephen Miller, perhaps the most deranged and malevolent of Trump's senior advisers, openly declared the administration's plan to overturn the election results in the upcoming joint session.

A gambit under the 12th Amendment is a long shot, to be sure, but so was Trump's initial presidential bid back when he descended the escalator at Trump Tower in June 2015 to announce his first campaign and stigmatize undocumented Mexican migrants as "rapists" and drug traffickers. It behooves us, then, to take Trump and Miller seriously.

Ratified in 1804 in the aftermath of the hotly disputed election of 1800 (which ultimately seated Thomas Jefferson as the nation's third president), the 12th Amendment modified the procedures that govern the Electoral College. And while the 12th Amendment itself was modified by the 20th Amendment (which moved up the presidential inauguration from March to January), its basic provisions remain intact.

Of particular relevance to Trump's machinations, the 12th Amendment stipulates that after the electors of the various states (there are 538 of them today) cast and certify their votes for president and vice president, their ballots are transmitted to the president of the Senate. Under the Constitution, the president of the Senate is the vice president, currently Pence.

The president of the Senate's role thereafter is ministerial and mandatory. Under the terms of the amendment, the president of the Senate "shall," in the joint session, "open all the certificates and the votes shall then be counted; The person having the greatest number of votes for President, shall be the President," provided—and this is the key to appreciating the impending coup—that such person receives a majority of the electoral votes.

But what happens if the Electoral College vote count is disputed? To understand what occurs then, we have to toggle back and forth between the 12th Amendment and a statute passed by Congress more than 130 years ago—the Electoral Count Act (ECA) of 1887. Under the ECA, if a single member of both the House and Senate signs and submits a challenge to any state's electoral votes, the joint session must immediately go into recess to allow each chamber to meet separately and debate the merits of the objections. To be sustained, objections require the support of a majority of the members of each chamber. Absent a majority, the objections fail.

It's all but certain that when the joint session convenes on January 6, objections to the electoral votes cast in the swing states of Arizona, Nevada, Georgia, Wisconsin, Michigan, and Pennsylvania indeed will be lodged. Republican Rep. Mo Brooks of Alabama, one of the zaniest of the GOP's bloated stable of right-wing fanatics, has announced that he will file an objection. Alabama Republican Senator-elect Tommy Tuberville, the thick-headed former college football coach, has suggested he will join Brooks.

A drama not seen in this country since the election of 1876, when alternate slates of electors were sent to the Senate on behalf of Democrat Samuel Tilden and Republican Rutherford B. Hayes (the eventual winner), will then ensue.

Reminiscent of 1876, alternate pro-Trump slates of Republican electors have met in several swing states, and plan to send their votes to the Senate in time for the joint session to back up the objections that will be raised by Brooks and Tuberville.

Both the 12th Amendment and the ECA address a doomsday scenario in which no candidate wins a majority in the Electoral College, whether because of the presence of alternate electors or for other reasons. In that event, 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 individual votes. Since Republicans will hold 27 House delegations in the next Congress, Trump would emerge victorious.

Fortunately, a contingent election in the House is highly unlikely. Because the Democrats control the House, and several Republican senators, including Senate Majority Leader Mitch McConnell, have recognized Biden as president-elect, the Brooks and Tuberville objections, even if backed by alternate electors, are destined to fail, as their objections will be subject to an ordinary majority vote in each chamber. In addition, to date, no votes cast by rogue pro-Trump electors have been certified by state governors or officially by any state legislatures, as required by the ECA.

But even that won't necessarily end Trump's attempted coup. According to press reports, Trump is considering advice offered by Michael Flynn to declare martial law to force a new election in the swing states that voted for Trump. Flynn, the disgraced retired Army lieutenant general and former national security adviser whom Trump pardoned in November for lying to the FBI, has been promoting the idea of martial law on Twitter and on right-wing media.

In any other era, Flynn would be dismissed as a caricature straight out of "Dr. Strangelove." The trouble is, we're living in the increasingly treacherous waning days of the Trump era, dominated by a fascist and a malignant narcissist desperate to remain in power.

Trump's coup will fail, but not before leaving a lasting stain on American democracy.

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.

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