Let’s take a walk.
Dana Milbank watched the Senate Judiciary Committee’s questioning Wednesday of former Obama administration deputy attorney general, Sally Yates, and marveled:
Nearly 5 million covid-19 cases in the United States. One-hundred fifty-seven thousand dead. Thirty-two million out of work. Tens of millions facing eviction, foreclosure and hunger.
What do we do now?
Simple: We talk about Hillary Clinton’s emails!
With the people they represent in crisis and facing hunger, homelessness and worse, Senate Republicans are spinning golden oldies from 2016: James Comey, Anthony Weiner’s laptop, the Steele dossier, Carter Page, George Papadopoulos, Peter Strzok, Andrew McCabe, Bruce Ohr, Fusion GPS, etc. Milbank calls out the GOP’s DJs: Sens. John Cornyn (R-Tex.), Lindsey Graham (R-S.C.), Ted Cruz (R-Tex.), Thom Tillis (R-N.C.).
“As Americans grapple with public health, economic and racial-justice crises,” Milbank writes, “Trump and his allies are talking about antifa, illegal immigrants and ‘Obamagate.’”
They sure as hell don’t want to talk about their party’s sinking electoral prospects this fall; about Donald Trump expecting everyone in the White House “from the chief of staff to the groundskeepers and event planners” to break the law for him; about his call for executive branch janissaries to police political speech that displeases him; etc.
They certainly don’t want to talk publicly about what they, their president, and their party might do to stay in power should Trump lose his reelection bid. That is, after purging voter rolls, suppressing voting by mail, hamstringing the U.S. Postal Service, and after sending 50,000 volunteers to “15 key states to monitor polling places and challenge ballots and voters deemed suspicious” fails.
Daniel Carpenter considers both what Republicans might do to hack the electoral college vote and Democrats’ options for unhacking the hacking:
In one scenario, even if Biden wins the popular vote in a state, a Republican governor or state secretary might refuse to certify the state’s slate of electoral college electors. That would mean that not enough electors would be selected, resulting in no presidential candidate being able to win a majority (270) of the 538 electoral college votes.
They could, in theory, throw out all norms regarding the will of the people, etc., and toss the election to the House of Representatives. “But here’s the rub,” Carpenter explains:
The Constitution directs the House to vote by state delegation, and Republicans currently hold a majority of the House’s state delegations. Assuming that the GOP maintains that lead in the new Congress and that lawmakers would vote for their own party’s nominee, the House would thus elect a Republican as president. As former Colorado senator Timothy Wirth and Newsweek’s Tom Rogers put it, this is how Trump could “lose the election and still remain president.”
Democrats playing hardball, if they learned anything from the 2000 election, have a recourse that, while unprecedented, is not technically out of bounds constitutionally. Assuming Nancy Pelosi (D-Calif.) retains her speakership, she could under Article I, Section 5 have her majority seat enough “contested” House races to seat enough Democrats to control a majority of state delegations ahead of the House selecting the president.
As the judge of contested elections, the House can entertain any challenge to the election results at the beginning of its session (after choosing the speaker, customarily its first vote). Usually, the House refers these challenges to a committee to investigate. The committee recommends awarding the seat to one or another candidate, and the House votes on that recommendation. If enough Democratic challengers surfaced to allow the Democrats to claim a majority of delegations, then the attempt to manipulate the presidential election could be reversed.
This is all nuts, of course. But not as nuts as the acting president. He has the Manhattan district attorney (and possibly the state of New York) breathing down his neck with a criminal investigation that could wreck his real estate empire in a way no federal pardon can immunize. Trump already has to be considering how, if he loses in November, he could resign days ahead of leaving office, making Vice President Mike Pence president just long enough to pardon him for any and all federal crimes Trump may have committed. It would be corrupt. It would be out of order. So, what else is new? Justice in this country has been out of order for some time.
Finally, let’s look at the concept of qualified immunity for police. U.S. District Court Judge Carlton Reeves found he could not deliver justice for Clarence Jamison, a Mississippi black man who had his new Mercedes convertible torn up in a roadside search by a white Mississippi officer named Nick McClendon. McClendon claimed that Jamison’s temporary tag was “folded up.” (Not true, writes Slate’s Mark Joseph Stern.) The doctrine of qualified immunity for police officers shields them from lawsuits. Reeves was not about to let that stand in the way of his disapproving loudly. He cited case after familiar case of black men abused by lawmen shielded by qualified immunity:
Our courts have shielded a police officer who shot a child while the officer was attempting to shoot the family dog; prison guards who forced a prisoner to sleep in cells “covered in feces” for days; police officers who stole over $225,000 worth of property; a deputy who bodyslammed a woman after she simply “ignored [the deputy’s] command and walked away”; an officer who seriously burned a woman after detonating a “flashbang” device in the bedroom where she was sleeping; an officer who deployed a dog against a suspect who “claim[ed] that he surrendered by raising his hands in the air”; and an officer who shot an unarmed woman eight times after she threw a knife and glass at a police dog that was attacking her brother.
Jamison was lucky. He walked away from the encounter with only his property damaged. McClendon violated Jamison’s Fourth Amendment rights, the judge found, but there was nothing he could do about it.
Stern writes:
With a historian’s eye, Reeves demonstrated that these decisions are not anomalies. They are part of the federal judiciary’s long, dispiriting history of “slamming shut the courthouse doors” on the most vulnerable, particularly Black Americans. The Supreme Court has corrected such injustices in the past. It outlawed school segregation in Brown v. Board of Education. And just this year, it abolished non-unanimous jury verdicts, a tradition rooted in bigotry. “Just as the Supreme Court swept away the mistaken doctrine of ‘separate but equal,’ ” Reeves concluded, “so too should it eliminate the doctrine of qualified immunity.”
Presiding now over the whole system is Donald J. Trump, a man who throughout his life has abused the legal system to evade justice, not to guarantee it. Right now he and his allies are looking for ways to bend justice to his will, to their advantage, and to thwart democracy. The whole system is out of order.
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