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SCOTUS is the right body to decide whether Trump ‘engaged in insurrection’

The case for disqualifying Donald Trump from running for president is almost certainly headed for the U.S. Supreme Court, and that’s exactly where it belongs. The court needs to make a determination as to whether Trump “engaged in insurrection” on Jan. 6, 2021. He did. We watched him do it. But without an official ruling of some sort, it would be illegitimate to throw him off the ballot.

A 4-3 ruling by the Colorado Supreme Court doesn’t get the job done. Neither does an opinion issued by Maine Secretary of State Shenna Bellows. Nevertheless, they both did the country a service, because they’ve started the wheels turning to resolve this issue once and for all — or at least for the 2024 election. Let’s look at what Section 3 of the 14th Amendment says:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Now, the Supremes may cop out by claiming that candidates for president aren’t specifically covered by Section 3, or that it was intended solely to prevent Confederate officials from seeking political positions. That would be a travesty. Because what we really need to know is whether SCOTUS believes that Trump “engaged in insurrection” by whipping up a mob of supporters in an attempt to prevent Congress from certifying Joe Biden’s victory. Again, we know he did it. But that’s not the same as a congressional determination, which we don’t have, or a Supreme Court ruling, which we almost certainly will. What does it mean, legally and constitutionally, to attempt an insurrection against the government?

I’m not saying that I trust the court; quite the contrary. But we only have one Supreme Court, and thus it’s important that the justices weigh in. Much of the debate over the 14th Amendment has been profoundly unserious. Voters should have the right to decide? Not if a candidate is ineligible. That’s why someone younger than 35 or who’s born in another country can’t run. Throwing Trump off the ballot would risk violence and rebellion? Then why have a Constitution in the first place? We are a country of laws, or at least that’s the idea.

The decision needs to be made by an institution that we would all recognize as having the last word, whether we agree or not. The Supreme Court is that institution. I wish we had a better court, but that’s an issue for another day.

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In 2007, Rudy Giuliani coulda been a contender — or at least that’s what he thought

Rudy Giuliani. Photo (cc) 2016 by Gage Skidmore.

Rudy Giuliani was always a racist and a thug, but he wasn’t always a pathetic clown. As you have no doubt heard, Giuliani has been ordered to pay $148 million to two Georgia election workers for lying about them and putting their lives in danger. In 2007, though, he was, briefly, a serious contender for the Republican presidential nomination. I was a columnist for The Guardian at that time, and my friend Seth Gitell and I caught up with him in New Hampshire. Here’s what I wrote. Looking back, I’m chagrined at the extent to which I focused on the horse race rather than anything of substance. In my defense (or “defence,” as the Brits who edited my copy would have it), I was just writing a quick dispatch from the campaign trail.

Tactical retreat

By pulling out of New Hampshire, Rudy Giuliani may live to campaign another day

By Dan Kennedy | The Guardian | Dec. 18, 2007

Rudy Giuliani made news in Durham, New Hampshire on Monday. But unless you’re attuned to the inside game as played by the political class and the media, you might have missed it.The former New York mayor brought his campaign for the Republican presidential nomination to Goss International, a printing-press manufacturer located in an office park on the outskirts of this small, snow-blanketed college town. Giuliani bounded on stage, about a half-hour late, spoke for a few minutes and took questions from employees.

In person, Giuliani can be compelling. If what he had to say was a familiar and predictable blend of free-market nostrums and 9/11, the way he said it was nevertheless worth paying attention to. He manages to come off as informal and conversational while still speaking in complete sentences; to bond with the crowd while retaining an air of authority.

But Giuliani, ahead in the national polls for months, is suddenly in trouble, especially in the early states of Iowa and New Hampshire, whose first-in-the-nation primary will be held on January 8. His blueprint all along has been to hang in until big states like Florida hold their primaries. It was always a dubious plan, since early success generates momentum that is hard to stop.

Add to that a passel of problems — from the federal indictment on corruption charges of his former police commissioner, Bernard Kerik, to a kerfuffle over taxpayer-funded security provided to his third wife, Judith Nathan, back when she was his mistress — and Giuliani is suddenly looking a whole lot less inevitable than he did during the summer and fall. The news this week was that Giuliani was pulling back on his advertising in New Hampshire, a move that could be described as tactically necessary but strategically desperate.

So it was actually the most innocuous-sounding sound bite Giuliani provided that had the most news value. “I’ll be spending some of my Christmas holiday here in New Hampshire,” he said toward the end of his talk. He made a joke about skiing, too. Was Giuliani still planning to make a serious play for New Hampshire?

“Rudy Giuliani is not pulling out of New Hampshire,” insisted his state campaign chairman, Wayne Semprini, as a gaggle of reporters surrounded him after Giuliani had left the room. Semprini added that “55-60% of the people are still undecided,” holding out the prospect of a late surge for Rudy.

Next the journalists started talking with each other. Brad Puffer of New England Cable News stuck a microphone in front of New York Sun columnist Seth Gitell, a Bostonian and an old friend with whom I had made the trek north that morning. Gitell described Giuliani’s Christmas-holiday remark as “a symbolic attempt to maintain some presence in New Hampshire”.

David Saltonstall, who’s covering Giuliani for the New York Daily News, told me it looked as though the former mayor was trying to keep his campaign in New Hampshire alive while simultaneously cutting back. “He’s walking kind of a tightrope with voters here, I think,” Saltonstall said.

It’s the perverse game of expectations, which often proves to be more important than the actual result. If Giuliani is perceived as having scaled down his campaign here but still manages to do well — say, coming in second to Mitt Romney, whose victory would be discounted because he’s the former governor of Massachusetts, a bordering state — then he could live to fight another day. (The flavour of the moment, Mike Huckabee, is not likely to be a factor in New Hampshire, where his fundamentalist religious views are nearly as unpopular with local Republicans as taxes and restrictions on gun ownership.)

Predictions are futile. Four years ago, I came to New Hampshire to watch John Kerry perform at an event that I described as an elegy for a campaign that had failed to anticipate the rise of Howard Dean. A few weeks later, Dean had collapsed and Kerry had all but wrapped up the Democratic nomination. Giuliani could win. Stranger things have happened.

But Giuliani’s problem is that he may have peaked too soon. No one expects Huckabee to win the nomination, but Romney, John McCain and even Fred Thompson all seem to be exploiting the turmoil created by Huckabee’s rise more adroitly than Giuliani has.

Giuliani told the lunch-time crowd that his platform comes down to two broad themes: “being on offence against Islamic terrorism and being on offence for a growth economy”. Trouble is, when it comes to politics, Giuliani these days is strictly on defence.

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Congressman to press: Keep out of my events

David McKay Wilson, an old Northeastern classmate of mine, has an eye-opening story up at the Rockland/ Westchester Journal News in New York about U.S. Rep. Mike Lawler, a moderate Republican who is “a darling of the national press corps” but who “bars the press from his Congressional office’s public Town Hall meetings and declines to answer questions about why he does so.” Wilson, a constituent, was able to get into one of Lawler’s events with a ticket given to him by a friend.

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Another possible stain on Henry Kissinger’s blood-soaked legacy

The photo on the book cover is of Demetracopoulos and Kissinger

Last Thursday, following the death of Nixon-era secretary of state Henry Kissinger at the age of 100, I posted a long essay I’d written in 2001 for The Boston Phoenix about the late journalist Christopher Hitchens’ claims that Kissinger was a war criminal, stemming from his nefarious activities in Cambodia, Chile and elsewhere. As I noted, that idea wasn’t novel, but Hitchens did a superb job of pulling it all together. I also wrote in that 2001 piece:

In what is the [Hitchens] essay’s only completely new and perhaps most dubious charge, Hitchens writes that Kissinger was involved in the attempted assassination of a Greek journalist named Elias Demetracopoulos, a Washington-based foe of the military junta that ruled Greece in the late 1960s and early ’70s. The documentary evidence is intriguing (the Greek government had apparently prepared a statement saying Demetracopoulos had died in an Athens prison, should he have been so foolish as to have returned home), but on this count, at least, Kissinger seems to be in the clear — or, to use a phrase forever linked to his sleazy boss, to have “plausible deniability.”

Or not. As I also noted, in 2020 I interviewed James H. Barron about his Demetracopoulos biography, “The Greek Connection,” focusing on attempts by the Greek junta to tilt the 1968 election to Richard Nixon through a secret $549,000 payoff. (I know; it sounds like Dr. Evil threatening to destroy the world unless he was paid $1 million.) In fact, Barron speculated that the Watergate break-in may have been motivated by the Nixon gang’s fears that the Democrats had evidence of the payoff and were going to use it to attack Nixon during the 1972 presidential campaign. So, what role may Kissinger have played in all of this?

“Greece was one of the countries that Henry Kissinger treated as a minor piece on the global chessboard and supported the military dictatorship that had overthrown its democratic government in 1967 as part of America’s Cold War strategy,” Barron told me by email. “Elias Demetracopoulos was a fiercely independent journalist who escaped the junta to become the leading activist in Washington fighting to change U.S. policy, overthrow the dictatorship, and restore democracy in his homeland. During its years in power 1967-1974 the junta stripped him of his citizenship and organized various plots to kidnap and kill him.”

Barron gave me permission to reproduce this except from “The Greek Connection,” which describes events from 1975.

***

After the dictatorship’s implosion, the Greek government had embarked on a “de-juntification” process, dismissing or replacing some military personnel and bureaucrats. There were promises that junta leaders would be put on trial for their crimes. Hearing that KYP chief Michail Roufogalis was to be deposed, Demetracopoulos hoped that secrets from the seven-year reign might come to light. Maybe he could find out the details behind his near miss of an escape, his blocked return to visit his dying father, and the intermittent warnings he had heard since 1967 that the colonels were out to “get” him and interrogate him. He did not yet know the full scope and intensity of their plots and the names of those involved.

But after the government announced it would limit its investigation and trials to those responsible for the most egregious tortures, Elias assumed that his concerns for justice were unlikely to be vindicated. After all, Greece had no laws providing a right of access to government records. Getting answers would take hard digging, and relevant files might have already been destroyed. Continue reading “Another possible stain on Henry Kissinger’s blood-soaked legacy”

Was Henry Kissinger a war criminal? More than 20 years ago, Christopher Hitchens submitted his brief

Nixon and Kissinger in the Oval Office. 1973 photo by the Central Intelligence Agency.

Somehow Henry Kissinger made it to 100 without getting shipped off to The Hague. When word came down Wednesday evening that the Nixon-era secretary of state had died, many were predicting that the media would slobber all over him. I see little evidence of that today, with The New York Times and The Washington Post featuring Kissinger’s ugly side as well as his accomplishments. Rolling Stone headlined its Kissinger obit, written by Spencer Ackerman, “Henry Kissinger, War Criminal Beloved By America’s Ruling Class, Finally Dies”— shades of the magazine’s classic Richard Nixon obit by Hunter S. Thompson, “He Was a Crook.”

More than 20 years ago, the late journalist Christopher Hitchens wrote a two-part essay for Harper’s that was later expanded into a book, “The Trial of Henry Kissinger.” Hitchens argued that the former secretary of state had committed war crimes in Cambodia, Chile and elsewhere and should be brought to trial. It wasn’t a novel argument even then, but Hitchens pulled together the strands in a compelling manner, even if he didn’t quite make the case that Kissinger should be arrested and sent to the Netherlands.

I wrote a lengthy overview of Hitchens’ case against Kissinger for The Boston Phoenix on March 8, 2001. If you’re looking for an antidote to the tributes coming Kissinger’s way, I hope you’ll find this worth your time.

Kissinger accused

Journalist Christopher Hitchens reminds us once again of the horrors that Henry wrought in Chile, Cambodia, Vietnam and elsewhere

By Dan Kennedy | The Boston Phoenix | March 8, 2001

Henry Kissinger may be the only living American who is casually described — at least in certain liberal and leftish circles — as a “war criminal.” In his heyday, during the Nixon and Ford years, Kissinger was a media superstar, the man behind the opening to China and détente with the Soviet Union. He even won a Nobel Peace Prize for helping to end the Vietnam War. But those triumphs have long since been supplanted in the public’s memory by a darker vision.

To the extent that Kissinger is thought of at all these days, it is for his leading role in the secret bombings of Cambodia during the Vietnam War and in the removal and subsequent murder of Chilean president Salvador Allende, a socialist who had the temerity to win a democratic election. Kissinger biographies, most notably Seymour Hersh’s “The Price of Power: Kissinger in the Nixon White House” (Summit Books, 1983) and Walter Isaacson’s “Kissinger: A Biography” (Simon & Schuster, 1992), long ago laid bare most of the details of those and other foreign misadventures.

Now comes Christopher Hitchens with a new, devastating portrayal of Kissinger. There’s no insult in observing that Hitchens offers little new information. Hitchens’ journalistic specialties are synthesis and polemicism, not investigative reporting. In a two-part, 40,000-word essay published in the February and March issues of Harper’s, Hitchens makes his purpose clear: to examine Kissinger’s career anew, and thus to show that the now-elderly diplomat committed war crimes — that Kissinger, in Hitchens’ view, knew about and in some cases actively helped plan terrible acts of assassination and mass killings, for which he may yet be called to account. Continue reading “Was Henry Kissinger a war criminal? More than 20 years ago, Christopher Hitchens submitted his brief”

Sanders’ principled stand

Sen. Bernie Sanders’ stance on the war between Israel and Hamas is thoughtful, nuanced and respectful of the need for a solution that allows Israelis and Palestinians to live in peace and dignity. In keeping with that, he’s refused to endorse a permanent cease-fire. So, naturally, some of his supporters on the progressive left are angry with him. Free link to this New York Times story.

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Our broken Constitution: Why half the country is represented by just 18 senators

Public domain illustration by Frederick Juengling and Alfred Kappes

We do not live in a democracy or even a proper republic, since in a republic our delegated representatives are supposed to reflect the will of the majority. New York Times columnist Jamelle Bouie is always a must-read on our broken Constitution, and his latest (free link) — on what’s wrong with the Senate — is especially worthwhile. Consider this: “Roughly half of Americans, some 169 million people, live in the nine most populous states. Together, those states get 18 of the 100 seats in the United States Senate.”

And as Bouie notes, that disparity was seen by some of the key founders as a bug, not a feature, but a bug that was needed in order to get support from the small states, which were already slated to be outvoted in the House of Representatives. James Madison referred to the Senate as “the lesser evil.” During the constitutional convention, Pennsylvania delegate James Wilson said the purpose of the national government was to empower individuals, not “the imaginary beings called states.” The 14th Amendment further enshrines individuals over the power of the states. Yet anti-democratic institutions persist, including the Senate, the Electoral College and, as a consequence, the Supreme Court.

Bouie has long shown that he knows his stuff, but in this case he’s riffing on a recent Washington Post report that I’ll confess I haven’t read. I’ll try to go back and take a look at it, but in the meantime, here’s another free link for you. And here is something I wrote last year on how government by a numerical minority is one of the reasons that this country is being torn apart.

The majority is not going to put up with being disempowered forever. The only question is how, and when, it will end.

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Obama weighs in

Former President Barack Obama has posted an important message at Medium. Echoing President Biden’s approach, Obama calls on us to support Israel’s right to self-defense while at the same time calling on Israel to protect the lives of civilians and work toward a decent resolution of the decades-old conflict between Israel and the Palestinians. He writes:

[W]hile the prospects of future peace may seem more distant than ever, we should call on all of the key actors in the region to engage with those Palestinian leaders and organizations that recognize Israel’s right to exist to begin articulating a viable pathway for Palestinians to achieve their legitimate aspirations for self-determination — because that is the best and perhaps only way to achieve the lasting peace and security most Israeli and Palestinian families yearn for.

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Profiles in cowardice

U.S. Rep. Jim Jordan. Photo (cc) 2016 by Gage Skidmore.

In case you missed the actual vote tally, Jim Jordan received 194 votes, all from Republicans, in the third and final round of public balloting for the House speakership. And he received just 86 in secret balloting among Republican caucus members; 112 were opposed. In other words, more than 100 gutless Republicans didn’t want him to become speaker but were too afraid to vote accordingly on the House floor.

I understand that Jordan had unleashed his goons and that some Republican House members were receiving death threats if they failed to back their extreme right-wing colleague, labeled a “legislative terrorist” by former Republican Speaker John Boehner. It’s awful. But we are at a moment when every elected official has to choose between authoritarianism and democracy. And a frightening number of Republicans are only willing to stand up to authoritarianism if they can do so in secret.

“The public intimidation worked when they had to go to the floor and before their colleagues and before the nation declare their fealty to Jordan or their fealty to someone else,” said Washington Post columnist Jonathan Capehart on the “PBS NewsHour” Friday evening. “But behind closed doors, they were actually able to say what they really felt.”

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Boehner is to Romney as McCarthy is to — Trump?

In 2015, replacing John Boehner with Mitt Romney seemed like a good, if unlikely, idea. Photo (cc) 2011 by Gage Skidmore.

With the Republican House lunatic caucus once again bringing down a speaker with no clear alternative, I want to recycle this GBH News column I wrote back in 2015, when the crazies pushed out John Boehner. This time around, with extreme right-wingers Steve Scalise and Jim Jordan facing off, the worst of the worst are suggesting Donald Trump as an alternative. Eight years ago, with a nudge from my friend Catherine Tumber, I put forth a kinder, gentler alternative: Mitt Romney.

This column originally appeared on Oct. 16, 2015.

House Republicans appear to have reached their End of Days. David Brooks of The New York Times, a moderate conservative who at one time would have epitomized Establishment Republicanism, has analyzed the situation brilliantly. So has Gene Lyons, a liberal, at The National Memo.

The immediate crisis is that the House of Representatives appears incapable of electing a speaker to succeed John Boehner. The problem is that Republicans on the extreme right vow not to respect the choice of the Republican caucus. That means no one will get a majority once the speakership comes to a full vote in the House, since nearly all of the Democrats will vote for their party’s leader, Nancy Pelosi.

So I have an idea, and I thought I’d toss it out there. We’re already having a good discussion about it on Facebook. How about a moderate Republican who’s not currently a member of the House (yes, it’s allowed) and who would be supported by a majority of Republicans and Democrats. How about — as my friend Catherine Tumber suggested — Mitt Romney?

Please understand that by “moderate” I mean moderate by the standards of 2015. Boehner may be the most conservative House speaker of modern times, but he’s a moderate by comparison with the right-wingers who are holding the House hostage. And so is Romney, who’d finally get the big job in Washington that he’s long lusted for.

Under this scenario, the Republicans would necessarily pay a high price for their inability to govern. House rules would have to be changed to give the Democrats more of a voice and maybe even a few committee chairmanships. The idea is to form a coalition government that cuts out the extreme right wing.

The chief impediment would be that Democrats might not want to throw the Republicans a life preserver under any circumstance, especially with the presidential campaign under way. But it would be the right thing to do, and I hope people of good will consider it. Or as Norman Ornstein, who predicted this mess, so elegantly puts it in an interview with Talking Points Memo: “We’re talking about the fucking country that is at stake here.”

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