Posted on by rjonakait

(Not) The End of Democracy?

I owe him an apology. My nephew asked if I thought we had just had our last democratic election. I arrogantly, churlishly responded, “Why would you say that?” I acted as if the question was paranoid, misguided. It was not.

My initial response was driven by several factors. First, we have no indication in the recent election that the Trumpista crazies who became election officials did anything to throw the election in Trump’s favor such as skewing the vote counts. If this did not happen with Donald Trump running, it is unlikely to occur with another candidate. The loyalties of those who want to upset our democratic norms are not to the Republican Party specifically nor to conservatism in general, but rather to Trump, and Trump will not be the running next time. And, thus, I had reasoned that the threat to our democracy would be minimal.

The nephew countered: Did I really think that Trump would not be a candidate in 2028? I referenced Trump’s age. He will be 82 in  four years, if he survives that long. Even many Trumpistas will think he is too old to be president. In addition, many other Repubs want to be president and will work to prevent a fourth Trump run. And, then, of course, the Constitution forbids it. The opening clause of the Twenty-Second Amendment is as clear as anything in our national charter: “No person shall be elected to the office of President more than twice. . . .” Period. The end. I don’t see how even the most partisan Supreme Court justice could find a way around this unequivocal pronouncement. Trump won’t be running. And because he cares only about himself, not the Republican party or conservatism, Trump won’t be campaigning to overturn an election in which he is not a candidate. Without his efforts, we are unlikely to have fake electors or requests for changes in vote counts. So, I reasoned, Trump won’t be a candidate, nor will he be tampering with the election in 2028.

But then I had a horrific thought: What if Donald Trump, Jr. were a candidate? (Or Ivanka or maybe even Jared? Even the father couldn’t support Eric, could he?) Then take everything I said above off the table.

However, as I thought more about my uncharitable response to my nephew, I realized that true democratic elections require more than just an accurate vote count. They also need an active opposition and the free-flow of information. Those are threatened by the calls from Trump and his cronies and his nominees for retribution. Such retaliation will not only be a punishment for the past, but a deterrent for the future spread of ideas and information necessary for democratic elections.

It is important to note that the promised retribution is not for criminal conduct, or for any kind of illegal conduct; it is for speech. Speech. Kash Patel makes this clear when he says that he will “come after” the media for what they have said. While media may be first on his list, retribution against others will soon follow. And, of course, with threatened punishment for information and ideas, fewer will be willing to speak out. And democracy will suffer.

Will we have retribution for free speech, as Trump, Patel, and others desire? Certainly, harmful retaliation has become more likely because of the Supreme Court decisions giving once and future president Trump immunity forever — let me repeat, forever — from criminal and civil actions. While the Court-created exemption extends “only” to official actions, the Court’s vague definition of official action is incredibly broad and extends even to illegal conduct. The Court indicated that any presidential order to or conversation with anyone in the executive branch is an official act, and it garners immunity. This is so even if the command is to take an illegal action. In other words, Trump does not have to worry about criminal or civil liability for presidential orders to the Justice Department, the FBI, Homeland Security, and many other departments. (The Supreme Court immunity decisions do not address whether an executive branch official who performs an illegal act under a presidential order can be prosecuted. It would be a strange world, however, if the underling can be prosecuted but not the boss who issued the directive.)

Retribution does not have to be illegal to provide a powerful deterrent to a free society. Practically speaking, the executive branch can investigate whomever it wants for whatever reason it wants. If probable cause is found to believe that a person has committed a crime, that person can be prosecuted. Moreover, the federal criminal law is broad and often vague. Many, perhaps all, of us have committed crimes—ever take a pencil home from work?—and if enough resources are put into a retributive investigation, many people could be charged with a crime. Of course, such charges will deter others from criticizing or opposing Trump and his acolytes. And democracy will suffer.

Retributive investigations will deter freedoms even without prosecutions. Investigations by themselves can lead to onerous demands for documents and testimony. The target has to bear the costs in time and money, which can reach hundreds of thousands, even millions, of dollars in fees and costs. Few organizations, much less individuals, can afford such harassment. Many of us will decide that it is better to remain silent rather than face the possibility of such retribution. And democracy will suffer.

It is not just investigations and prosecutions that can deter free speech and undermine democratic elections. Peter Hegseth promises to remove wokeness from the military services. From what I have seen from other conservatives, the goal would be to fire, or at least not promote, some officers, not for their actions or performances, but because they have spoken out in favor of diversity and inclusion. If this is what combating wokeness means, it seeks the suppression of ideas in the very same way as the promises of retribution from Trump and Patel do. When ideas are punished, democracy suffers.

The coming years can provide other dangers to our democracy. Trump has said that he will pardon the January 6 mayhem makers. This undermines our democracy by indicating that there might not be penalties for obstructing a fair election. Trump has been urged to invoke the Insurrection Act. Perhaps we will discuss that Act someday, but let’s just say now that the vagueness of that eighteenth-century legislation could lead to alarming results.

And it is not just the Trump administration that is concerning. There is the anti-democratic institution of the Supreme Court. It is frightening what it might do in the coming years.

I am not saying that we are about to lose our democratic elections and the rule of law, but my glib response to my nephew was injudicious. I am no longer quite so certain that our democracy is safe.

Posted on by rjonakait

Snippets

A Methodist church near my Pennsylvania cottage is having one of its regular spaghetti dinners. I have never gone. I have assumed that in this tiny Poconos town, the meal will consist of overboiled pasta covered in Hunt’s tomato sauce with chopped-up cocktail franks and topped with “parmesan” from a reclosable bag. I don’t imagine that rural Methodists do anything like the Sunday gravy of my Italian friends. I could be wrong; the good ladies of the greater community often come up with some sumptuous spreads after local events that I have attended.

The New York Times anointed The Bee Sting by Paul Murray as one of the best novels of 2023. Perhaps that is why I pulled it from the library shelves despite its heft. I noted the blurb on the back from Gary Shteyngart, who said the book was a “hilarious whirlwind.” Shteyngart, a writer whom I admire, has written stuff that made me laugh out loud. The Bee Sting, on the other hand, is the saga of an Irish family that falls into economic distress from the recession of 2008. It may be a remarkable book, but hilarity is not one of the attributes I would ascribe to it. I read its almost 650 pages with but a slight smile on occasion and certainly without a laugh.

Perhaps I just don’t understand hilarity. After all, The Bear, the FX show that I watch streaming on Hulu, is frequently listed as a comedy. I don’t get that. On occasion I smile during it, but more often I feel tension as I watch. The Bear is marvelous, but it is not a comedy.

A friend referred to a couple who had “been married for forty fucking years.” I thought that they may have been husband and wife for four decades, but I doubted that they were married for forty fucking years.

JD Vance has said that if he had been Vice-President on January 6, 2020, he would not have certified the results of the electoral college. For your discussion group: Under what circumstances should Vice President Kamala Harris refuse to certify election results in January 2024?

An astute observer said: “A conservative is one who wants the rules enforced so no one can take his pile the way he got it.”

We learned this year that Presidents have absolute immunity for some official presidential acts and presumptive immunity for the rest. For your discussion group: If you were Biden, what acts would you be emboldened to take because of the Supreme Court’s immunity decision?

Posted on by rjonakait

Snippets

Just to set the record straight: Many Trump trial commentators have said that Trump needs only one hold-out juror to avoid conviction. This is true, but it lacks context. The jury of twelve must be unanimous to convict or acquit. If all the jurors cannot agree, we have a hung jury. The state would then have to decide whether to retry Mr. Trump. It should be noted, however, that although the exact rate is unknown, hung juries are not frequent. Getting such data is difficult because no uniform definition of “a hung jury” exists. For example, if five defendants are tried in one trial and the jury convicts four but can’t agree on the fifth, some jurisdictions would record this as a hung jury, while others would label it a conviction, while others would record four convictions and one hung jury. Similarly, when one defendant is charged with a number of crimes, many jurisdictions will consider only what happens to the most serious count. Others will call it a hung jury if the jury could not reach a result on any one count. Without going into methodological details, a study a few decades ago found that the hung jury rate throughout New York state was 2.8%. In other words, rare. Moreover, the little data we have indicate that few of those rare hung juries are hung because only one person won’t agree with the other eleven. One person can hang a jury. It rarely happens. (Drawn from my book, The American Jury System [Yale University Press.])

“What else was an ongoing criminal enterprise complicated by periodic violence for, but to make your wife happy?” Colson Whitehead, Crook Manifesto.

A lesson for our time? Jacques Chirac was President of France from 1995 to 2007. Allegations of corruption swirled about him. However, a controversial judicial decision concluded that he had immunity from prosecution while he was president. The court gave reasoning similar to what has been said in this country for granting immunity to a sitting president: i.e., he will not be able to perform his duties as president if at the same time he faces prosecution. In France, however, the authorities realized that such protection should end when Chirac left office, and he was indeed prosecuted for and convicted of various crimes when he became an ex-president. He was given a suspended two-year sentence for his convictions. (Chirac had suffered a stroke near the end of his presidency, and his mental health deteriorated after leaving office.) This precedent has not led to the regular prosecutions of ex-presidents in France, as it has said will occur unless Trump as an ex-president is given immunity from all criminal prosecutions.

The performance of the “Vespers” of 1610 by Claudio Monteverdi was marvelous. I expected as much with the twenty-five voices of the Choir of Trinity Wall Street. The accompanying Trinity Baroque Orchestra had violins, violas, a cello, bass, harp, harpsichord, and organ, but there was a bonus. The orchestra had not just one but two cornett performers; not just one but two theorbo players; and not just one but—wait for it—three performers on the sackbut. (Sackbut is one of those words, like Lake Titicaca, that I can’t say without smiling.)

As I neared my stop, a woman across the subway car, spotting the book in my hand, asked if I was reading the new Tana French novel. After I said that I was, she wanted to know if it was good. I said that I was enjoying it, but it was too long and was not as good as her last one. The woman got off the train as I did. She asked if I was familiar with the Scottish mysteries of Denise Mina, which she felt were similar to French’s. I was not, and she urged me to try them. Later that week I got one out of the subscription library. She was right. Field of Blood, which introduced the character, Paddy Maheen, is quite good.  And I have also learned that I can get useful book recommendations in all sorts of places including a subway ride. I doubt I will ever see that Tana French fan again, but thank you for the Denise Mina mention.