The Second Boat Strike Is Moot Because The First Was Illegal

We have heard a lot about the second strike against an alleged narcotics-carrying boat on September 2nd. Congress want the full tapes of the bombings released, and Secretary Hegseth is refusing to release them. The question seems to be whether a war crime was committed - the execution of helpless shipwrecked victims.

I believe that whole question is a moot one for two reasons. First, we are not at war. Second, the first strike was illegal.

What would we think if Border Patrol officers blew up a vehicle trying to enter the U.S. and killed everyone in it because it was suspected that the vehicle contained illegal drugs?

What would we think if the DEA/Police blew up a suspected drug dealers house/apartment killing everyone in it?

The answer is obvious. The officers would be arrested and charged with murder. We operate under the rule of law in this country. We arrest suspected criminals, give them a fair trial respecting due process protections, and let a jury decide their guilt or innocence. Labeling them as "narco-terrorists" would not change that.

Why then would we think it's different in international waters? They are suspected criminals - not terrorists or enemy soldiers. Calling the bombings an act of war and labeling the victims as terrorists changes nothing.

Our Navy and Coast Guard are fully capable of seizing and searching the boats, and if contraband is discovered, arresting the people on the boats. They would than be given a fair trial and either convicted or found innocent. That is the law. That is what has always been done. Killing them with a trial and proof of their guilt is illegal - it is murder. 

And that is true even if ordered done by a president.

A Proposal That Could Stop Political Prosecutions

Donald Trump claimed that he was the victim of political prosecutions. Now he is directing political prosecutions of his own. Regardless of who is doing it, political prosecutions are very destructive to both our democracy and our system of justice.

Two law professors, Ian Ayres (Yale Law School) and Saikrishna Prakash (University of Virginia Law School), think they have a solution. They have a proposal for Congress that, if passed, could end the destructive practice of political prosecutions. Here is what they write in The Washington Post:

We are caught in a vicious cycle. The in-group is using the law against the out-group, which will surely feel empowered to respond in kind once the tables turn again. Americans widely believe that prosecutions are increasingly being weaponized, even if they disagree about who started it. To stop the spiral and restore confidence, we propose a novel prosecutorial check. . . .

In deciding whether to prosecute politicians, the Justice Department must navigate two vital imperatives: Politicians should not be immune from prosecution, and the decision to prosecute should not be influenced by partisan politics.

The Justice Department used to have substantial internal safeguards against politically motivated prosecution. But the Trump administration has gutted these. In May, department leaders suspended a decades-old requirement that prosecutors seek approval from its Public Integrity Section before charging members of Congress. Simultaneously, that section was reduced from more than 30 attorneys to just two. The president has brazenly discarded the long-standing norm against White House influence on prosecutorial decision-making.

As politicization has ramped up, the judicial checks on partisan prosecutions have remained static. Targets of political prosecutions can challenge their indictments. But courts rarely dismiss indictments on grounds of selective or vindictive prosecution.

We propose that Congress give federal judges another option. When a prosecution appears politically motivated, a judge should have the discretion to impanel a “prosecutor jury” to assess the propriety of the indictment.

The prosecutor jury would be composed of 20 randomly selected former U.S. attorneys, evenly divided between those nominated by Democratic and Republican presidents. A prosecution could proceed only if at least two-thirds of this panel — 14 out of 20 — concluded that the indictment was appropriate. This supermajority would ensure that at least a substantial minority of prosecutors nominated by a defendant’s own party supported the prosecution.

Former U.S. attorneys are uniquely qualified to guard against weaponized prosecutions. Unlike ordinary grand jurors, they have extensive experience making charging decisions, understand prosecutorial strategy and can distinguish legally sound theories from problematic ones.

This framework would help ensure that politicians are not above the law, since they would remain subject to prosecution. But politicians and, more important, the nation would be better protected from partisan prosecutions. Should a prosecutor jury approve an indictment, Americans would know that a bipartisan supermajority of professionals endorsed it.

To test our framework, we surveyed former U.S. attorneys regarding the Trump indictments. The responses revealed significant nuances across cases and political lines. The Florida classified-documents prosecution of Trump received substantial majority support from both Democratic-and Republican-nominated attorneys. Interestingly, some prosecutors nominated by Democrats expressed reservations about the case.

Responses to the case charging Trump in the attempt to overturn the 2020 presidential election tell a different story. Once we balanced for respondents’ political ties, the indictment lacked support from even a simple majority — well short of our two-thirds requirement. These results demonstrate that former U.S. attorneys can rise above party lines to apply professional judgment developed through their considerable experience.

These heartening results signal the utility of a prosecutor jury. If a case persuades 14 of 20 prosecutors, that is sound evidence that it has merit.

Critics may object that our proposal undermines rule of law by making prosecution more difficult. This criticism misunderstands what the rule of law requires. The Bill of Rights mandates numerous protections that make conviction more difficult, from unanimous jury verdicts to rules about gathering evidence. Moreover, the Constitution grants special protections for certain officials. Members of Congress possess a privilege against certain arrests and a speech-and-debate privilege. Presidents and judges have official immunity. These safeguards are not exceptions to the rule of law — they are part of its responsible exercise. . . .

We, too, are members of opposing parties, and we both fear that the weaponization of prosecutions gravely threatens the rule of law. No one can be blind to the reality that both parties may engage in prosecutorial malfeasance. Any solution must therefore command bipartisan credibility. Prosecutor juries are the bulwark we need.

This Was NOT Law Enforcement - It Was Murder!

On Tuesday, the Trump administration blew up a boat in international waters and killed its 11-member crew. The administration claimed it was gang members carrying drugs from Venezuela that were destined for the United States. But they have provided no proof of that. And Secretary of State Rubio said it would happen again in the future.

The Trump administration claimed the attack was justified because the people on the boat were "terrorists". But that's a pathetic excuse for the illegal action. Drug dealers (if that's what they were) may be criminals, but they are not terrorists - and calling them terrorists does not make them that.

Even if we ignore the fact that the attack happened in international waters, and assume that those on the boat were indeed trying to smuggle drugs into the United States, murdering them was still wrong - and it was murder. According to U.S. law, criminals should be arrested, detained, and given a fair trial.

How would this be any different than killing those found smuggling drugs across our southern border, or killing those found selling drugs on American streets? 

I am not trying to defend criminal behavior. But our democracy has laws, and the government violating those laws is no better than the criminals doing it. In fact, it may be worse because when the government violates our laws then we no longer have a system based on the rule of law.

Trump seems to think he has the power to do whatever he wants, including labeling people as terrorists and murdering them. He doesn't. And decent people in this country must make it clear that our laws matter.

Trump Administration Said They Were Violent Criminals - Where Is The Proof?

The Trump administration deported 238 immigrants to a maximum prison in El Salvador. A couple of days ago, they sent 10 more to that prison. Administration officials said they were violent criminals - the worst of the worst.

As President Bukele of El Salvador visited the White House, HHS Secretary Kristi Norm thanked him for taking these "worst" criminals that the U.S. didn't have room for. What a ridiculous statement!

The United States has more people in prison per capita than any other country in the entire world. I'm sure we could have found room for 248 more. The problem was not having enough room. It was violating both the Constitution and the rule of law.

These immigrants (and any other visitor to this country) have the same rights under our Constitution as citizens do. One of these important rights is "due process" - the right to a hearing or trial before the government takes punitive action against you.

If these deportees had been given a hearing (which was their right), the government would have had to prove they were undocumented. They could have done that probably, and then had the right to deport them to the country of their origin.

But they were not deported to the country of their origin (Venezuela). They were sent to El Salvador - and even worse, they were sent to a maximum security prison - possibly for the rest of their lives (or until the U.S. stopped paying El Salvador to incarcerate them).

That was a violation of the rule of law. The government of the United States cannot put anyone in prison with giving them a trial and providing proof that they have violated the law. No proof was offered and no trial was held. Mere statements by government officials are NOT proof!

The truth is that the government likely had no proof. At least 75% of these deportees had no criminal record - and the government offered no proof that any of them had violated U.S. law.

If these men were violent gang members and undocumented, then I would have no problem with their deportation. But it must be done correctly and within the law. When anyone is denied due process and imprisoned without proof in a trial, it puts everyone in danger - even citizens.

Rights must apply to everyone or they are assured for no one. 

Save God-King Trump From Evil Rule Of Law (SATIRE)

Alexandra Petri (in The Washington Post) gives us more delicious SATIRE - this time about the verdict in Trump's trial.

THE RULE OF LAW IS OUT OF CONTROL AND MUST BE STOPPED!

Have you heard the news? A so-called JURY OF HIS PEERS (absurd! the man is peerless!) dared to pass judgment on Donald J. Trump as though he were an ORDINARY CITIZEN, SUBJECT TO LAWS, and not the GOD-KING OF AMERICA THAT HE WAS AND SHALL BE!

The corrupt, wicked courthouse even had “EQUAL AND EXACT JUSTICE TO ALL MEN OF WHATEVER STATE OR PERSUASION” carved on the outside! AS THOUGH IT APPLIED TO DONALD J. TRUMP!

IF THIS IS THE WAY WE ARE GOING TO TREAT DONALD TRUMP, WE DON’T DESERVE TO BE A DEMOCRACY! PLEASE DONATE NOW SO THIS CAN STOP!

Juries, acting as if they had the right to pass judgment! Judges, judging! Laws, binding!

WE CAN’T HAVE THAT! WE CAN’T — AND WITH YOUR HELP, WE WON’T!

Donald Trump has wisely opted to ignore the verdict and call for another trial in the court of public opinion (a real place where we will get much better justice).

If he can be duly convicted by a jury of his peers on 34 counts of tampering with business records, then none of us is safe, assuming we also tampered with 34 business records to influence an election! This means the system is hopelessly broken! Donald Trump is not just anybody! He’s supposed to be one of those the system protects but does not bind! But the system is saying that if he was suspected of breaking the law, he needed to be put on trial, and because he was found guilty, he should face consequences — AS THOUGH THEY DON’T KNOW WHO HE IS AND THE LAW DOESN’T CARE?

WE CAN’T STAND BACK AND LET THIS HAPPEN!

Some say Democrats did this to Donald Trump, but that misses the point. As long as we exist in a system where laws are binding and anyone can face trial for breaking them, Donald Trump is not safe! That’s why we have to END THE TYRANNY OF THE RULE OF LAW NOW! As long as we have the rule of law and the right to vote means something, it is possible that Democrats, or even Traitor Republicans, can stand in the way of Donald Trump! We must fight like hell to end these conditions.

LAW-HAVING IS OUT OF CONTROL. YOU CAN’T FALSIFY BUSINESS RECORDS NOW? YOU CAN’T INTERFERE WITH AN ELECTION NOW? WHAT’S NEXT, NO COUPS?

Why is it that when Joe Biden walks into the White House and says, “I am President now,” it is fine, but when Donald Trump does that, it’s a coup? Sounds like a double standard to me. Sounds like maybe Joe isn’t below the law after all!

(Some law is fine, like whatever we can use to put HUNTER BIDEN IN A GULAG! And anybody who can get pregnant! Maximum law for them! But no laws for Donald Trump or his family members or that nice man with the pillows.)

If being a country of laws means that Donald Trump can be charged, tried and convicted in a court of law, then maybe being a country of laws is the enemy! And you know what Donald Trump wants to do to his enemies!

PLEASE SUPPORT DONALD TRUMP! ANY LITTLE BIT HELPS TOWARD OUR GOAL OF FREEING THIS NATION FROM THE IRON THUMB OF THE JUSTICE SYSTEM! OUR ONE NATION SHOULD BE UNDER GOD (TRUMP’S BIGGEST FAN) AND THAT’S IT! DONALD TRUMP WAS NOT ELECTED PRESIDENT (TWICE, IF HE IS READING THIS) TO BE UNDER THE “LAW” LIKE EVERYBODY ELSE.

We just thought that if you were president even once, it meant you got to do crimes, and if that’s not true, we’re going to respond by making this place unlivable and issuing WEIRD THREATS!

LAW AND JUSTICE IN AMERICA HAVE HAD THEIR DAY LONG ENOUGH. SEND MONEY TODAY, AND WE CAN MAKE SURE THAT THIS RIGGED SYSTEM THAT INSISTS ON TREATING ALL DEFENDANTS ALIKE WILL END RIGHT NOW!

If you support Donald Trump, we absolutely can destroy that system. Look what we’ve already done to the Supreme Court and people’s faith in institutions!

PLEASE GIVE NOW! NEVER SURRENDER!

Today's GOP Is Not The Party Of Law And Order

“This was a sham show trial. The Kangaroo Court will never stand on appeal.” - Gov Greg Abbott (Texas)

"This verdict is a disgrace, and this trial should have never happened." - Sen. John Cornyn (Texas)

“This is a dark day for America.” - Sen. Ted Cruz (Texas)

“These charges never should have been brought in the first place.” - Sen. Mitch McConnell (Kentucky)

“I won’t stand by while the leader of our party is ambushed by our own government.” - Rep. Steve Scalise (Louisiana)

“This was certainly a hoax, a sham.” - Sen. Tim Scott (South Carolina)

"Just witnessed the most egregious example of election interference and an outright mockery of the rule of law in the 246-year history of our Republic." - Senate candidate Kari Lake (Arizona)

 "A shameful day in American history. This was a purely political exercise, not a legal one." - House Speaker Mike Johnson (Louisiana)

“A disgrace to the judicial system.” - Sen. J.D. Vance (Ohio)

“This verdict says more about the system than the allegations.” - Sen. Lindsey Graham (South Carolina)

“Politically motivated from the beginning, and today’s verdict does nothing to absolve the partisan nature of this prosecution.” - Sen. John Thune (South Dakota)

"A complete travesty that makes a mockery of our system of justice." - Sen. Marco Rubio (Florida)

"This was a sham, rigged political show trial from the very beginning." - Sen. Tom Cotton (Arkansas)

"The verdict shows how corrupt and rigged the American justice system has become under Joe Biden." - Rep. Elise Stefanik (New York)

The quotes above are just a sample of Republican reactions to the felony conviction of Donald Trump. Republicans across the nation are not only condemning the verdict, but our entire system of justice.

This is strange for a party that has in the past prided itself on being the "law and order" party. I remember when it became obvious that Richard Nixon had violated the law. A group of Republican senators went to the White House and demanded he resign - telling him they would vote for his impeachment if he did not. Whatever one might think of these GOP senators on other issues, they did believe in the rule of law and believed that no one was above the law.

Today's Republican Party is very different. They no longer believe in the rule of law. They believe a Republican president should be above the law. They now believe is a two-tier system of "justice" - one for rich, white, Republican men, and another for the rest of the country (especially the poor, nonwhites, the young, and women who want an abortion).

Now they stand ready to nominate a man who has been convicted of 34 felonies (and likely will also be convicted of federal felony charges) to be their candidate for president.

They should be ashamed!

13 Presidential Centers (Both Rep. & Dem.) Call For Respect For Rule Of Law And For Diversity Of Beliefs

 

If He's Broken The Law, Trump Must Be Indicted And Tried

Donald Trump is being investigated by several entities for possible breaking the law -- the city of New York, the state of New York, the state of Georgia, and the U.S. Department of Justice. And it looks like one of those entities is close to issuing an indictment -- the city of New York.

This has the talking heads on cable news going crazy. They're saying that an indictment would anger Trump's followers, and possibly result in violence (similar to the January 6th riot). They're saying it would represent a low point in American history having a former president put on trial. And they're saying it might make Trump more popular (helping him to again be nominated by the Republicans).

They may be right about all of that. But that is NOT a good excuse to not indict and try Trump for breaking the law. If he has broken the law (and I believe he has), then he must be indicted and tried.

It must happen to uphold the rule of law, and once again establish equality under the law for all citizens. A failure to do so would mean that we have a two-tiered justice system -- one for the rich and powerful and another for the rest of America. 

While it is true that the rich have an easier time in our courts than the poor, that is something that we have fought against as a country. Refusing to indict and try Trump would make a mockery of that battle for equal justice.

We cannot allow the wealth or popularity of any individual to determine how they will be treated under the law. And we cannot allow threats to determine whether a lawbreaker will be punished or not. 

We are at a national cross road. Do we believe in the rule of law or not? Do we believe all men/women should be treated equally under the law or not? If we choose the latter in either case, we will do serious damage to our democracy.

Trump Must Be Prosecuted To Save The "Rule Of Law"

 

The following op-ed is by Charles M. Blow in The New York Times:

Donald Trump may finally be indicted. Finally!

The Manhattan district attorney’s office has signaled that charges, related to Trump’s reported hush-money payments to the porn star Stormy Daniels, are likely.

But there’s also hand-wringing: about whether this is the best case to be the first among those in which Trump is likely to be criminally charged, the strength of this case compared to others and the historic implications of indicting a former president for anything.

And with regard to those implications, the central considerations always seem to be the importance of any precedent set by prosecuting a former president and the broader political significance — what damage it might do to the country. Often left out of that calculus, it seems to me, is the damage Trump has already done and is poised to continue to do.

Prosecution is not the problem; Trump himself is. And any pretense that the allegations of his marauding criminality are a sideshow to the political stakes and were, therefore, remedied in 2020 at the ballot box rather than in a jury box, is itself a miscarriage of justice and does incalculable damage.

Last year, around the time the House Jan. 6 committee was holding hearings, Elaine Kamarck, the founding director of the Center for Effective Public Management at the Brookings Institution, wrote: “Prosecuting Trump is not a simple matter of determining whether the evidence is there. It is a question embedded in the larger issue of how to restore and defend American democracy.”

I don’t see it that way. Any case against Trump must hang on the evidence and the principle that justice is blind. The political considerations, including gaming out what might be the ideal sequence of cases, across jurisdictions and by their gravity, only serve to distort the judicial process.

The justice system must be untethered from political implications and consequences, even the possibility of disruptive consequences.

For instance, could an indictment and prosecution of Trump cause consternation and possibly even unrest? Absolutely. Trump has been preparing his followers for his martyrdom for years and evangelizing to them the idea that any sanctioning of him is an attack on them. This transference of feelings of persecution and pain from manufactured victimhood is a classic psychological device of a cult leader.

Trump uses the passions he has inflamed as a political threat against those pursuing him: In 2019, when he was facing impeachment, he took to Twitter, citing a quote from Pastor Robert Jeffress, who’d appeared on Fox News and recklessly posited that if Trump were removed from office “it will cause a Civil War-like fracture in this nation from which this country will never heal.”

Last year, on a conservative talk radio show, Trump said that if he were indicted in connection with his alleged mishandling of classified documents, “I think you’d have problems in this country the likes of which perhaps we’ve never seen before. I don’t think the people of the United States would stand for it.”

Over and over, Trump has goaded his supporters in this direction: whether during the 2016 presidential race, urging rallygoers to “knock the crap out of” people who might disrupt the proceedings, or telling the Proud Boys, during a 2020 debate, to “stand back and stand by.”

On Jan. 6, 2021, he waited and watched the attack on the Capitol for hours, resisting pleas from his own advisers to try to stop it. When Trump finally made a statement, he downplayed the insurrection and reluctantly told the rioters to go home, but not without adding: “We love you. You’re very special.”

Trump is the impresario of incitement. He’ll use any attempt to hold him accountable to agitate and activate his loyalists.

That’s not a reason to avoid vigorously and swiftly pursuing him legally, but rather a reason to do it. If we establish a precedent that amassing a significant threat to society is a ward against enforcement of the law, it makes a mockery of the law.

It would reinforce what was already a persistent problem in the criminal justice system: unequal treatment of the rich and powerful, compared to that of the poor and powerless.

A series of studies from more than a decade ago in The Proceedings of the National Academy of Sciences found that upper-income people were more likely to lie, cheat and literally take candy meant to be given to children. The researchers postulated that several factors could have contributed to this, including a lowered perception of risk, plenty of money to deal with the “downstream costs” of their behavior, feelings of entitlement, less concern about what other people think and a general sense that greed is good.

At the same time, as Jeffrey Reiman and Paul Leighton write in their book, “The Rich Get Richer and the Poor Get Prison,” “The criminal justice system is biased from start to finish in a way that guarantees that, for the same crimes, members of the lower classes are much more likely than members of the middle and upper classes to be arrested, convicted and imprisoned.”

The authors go further, theorizing that the goal of the criminal justice system isn’t even to prevent crime or provide justice, but rather to “project to the American public a credible image of the threat of crime as a threat from the poor.” When you think of it that way, it’s not hard to see how Trump and many of his admirers choose to see him as above the law. Indeed, if he weren’t rich and powerful, charges would almost surely have been filed long ago.

Prosecuting Trump wouldn’t break the country. On the contrary, it would be a step toward mending it, a step toward undergirding the flimsy promise of “equal justice under law.”

The eyes of the country are on these cases — the eyes of all those who’ve been badgered for minor violations, who’ve had the book thrown at them for crimes that others either got away with or served no time for. Not only are they watching, but so are their loved ones and their communities.

They, too, are America, and further damaging their faith in the country should matter as much as damaging the faith of any other part of our body politic.

To rehabilitate American justice, Trump must be prosecuted.

These 4 Judges Upheld The Rule Of Law Last Week

Thankfully, four judges this week (including some appointed by Trump) ruled that we are still a nation of laws. Here is how Jennifer Rubin describes it in The Washington Post:

A group of judges this week helped ensure that the investigation into former president Donald Trump for spiriting away highly classified documents from the White House would continue unimpaired. In doing so, they helped restore some faith in our court system — and in democracy.

Former federal judge Raymond J. Dearie, whom the hapless Judge Aileen M. Cannon selected as the special master to review the classified documents, proved that Trump’s lawyers were mistaken to believe that he would serve as an ally to their aside. Instead, he moved quickly to put an end to Trump’s stalling and nonsense.

Dearie ordered Trump’s counsel to definitely say whether Trump’s team would claim before a judge that documents were “planted” by the FBI at his Mar-a-Lago resort, as Trump has claimed publicly but not in court. Coupled with his previous warning that he was likely to defer to the government if Trump did not make clear whether he declassified any documents, Dearie has systematically blown up Trump’s frivolous lawsuits to stop the investigation — and his public propaganda campaign. His attorneys have to decide if they will go along with Trump’s lies by affixing their names to them in a court filing. I suspect they will not.

Meanwhile, a three-judge panel from the U.S. Court of Appeals for the 11th Circuit, consisting of two judges appointed by Trump and one by Barack Obama, systematically dissected and discarded Cannon’s rulings concerning the classified documents. “We decide only the narrow question presented: whether the United States has established that it is entitled to a stay of the district court’s order, to the extent that it (1) requires the government to submit for the special master’s review the documents with classification markings and (2) enjoins the United States from using that subset of documents in a criminal investigation,” the panel held. “We conclude that it has.”

The panel found Cannon lacked equitable jurisdiction. Moreover, the panel wrote, “the district court concluded that Plaintiff did not show that the United States acted in callous disregard of his constitutional rights.”

That should have been the end of it, but the panel did not spare Cannon from finding Trump failed to meet every other prong of the test. The court continued: “Plaintiff has not even attempted to show that he has a need to know the information contained in the classified documents. Nor has he established that the current administration has waived that requirement for these documents.” In other words, the panel effectively said Cannon was acting without any legal or factual basis.

Likewise, “Plaintiff suggests that he may have declassified these documents when he was President. But the record contains no evidence that any of these records were declassified.” That’s legalese for: What in the world was Cannon thinking?

The panel also found the idea of “irreparable harm” to Trump, which Cannon essentially found on the basis of him simply being a former president, was absent. All citizens face potential damage to their reputations from criminal investigation; their remedy is in dismissal of charges or vindication at trial.

In contrast to Cannon, the 11th Circuit also found that the government would suffer irreparable harm from Cannon’s order barring the Justice Department from continuing to investigate potential crimes because “its national-security review is inextricably intertwined with its criminal investigation.” Cannon had no basis to disregard that.

If Cannon flipped the legal system on its head, the 11th Circuit turned it right-side up. It reaffirmed the notion that Trump is no different than any potential defendant — and that a court cannot facilitate his antics by making up conflicts of law and fact where there are none. Objective reality matters. The law matters.

Perhaps Trump’s lies and bogus explanations really won’t protect him in a court of law. Maybe he is going to be held accountable for his conduct. If so, these judges will have repaired some of the damage his lawlessness has done to our democracy. For that, we can say, well done. 

The Case For A Federal Prosecution Of Donald Trump

There has been much in the news about the state of New York and the Manhattan District Attorney investigating Donald Trump. It looks like they are close to getting a Grand Jury indictment against the financial CEO of Trump's companies, and that will likely lead to criminal charges also being filed against Trump.

But that won't penalize Trump for his misdeeds while president, and that needs to happen. It should happen to make clear to all future presidents that they are not above the law. They are subject to the same laws that cover all other Americans.

The following is from the editorial board of The Boston Globe. They lay out the case for the Justice Department filing federal criminal charges against Trump.

Trump’s presidency didn’t just expose glaring legal weaknesses: It also made clear that our institutions are incapable of holding presidents accountable for breaking even our existing laws. If Congress had played the role the Founders envisioned, by removing Trump from the presidency after his criminality became clear in the Ukraine affair, that might have been enough of a deterrent to scare future presidents straight. But lawmakers didn’t.

So now there is only one way left to restore deterrence and convey to future presidents that the rule of law applies to them. The Justice Department must abandon two centuries of tradition by indicting and prosecuting Donald Trump for his conduct in office.

That’s not a recommendation made lightly. The longstanding reluctance to prosecute former leaders is based on legitimate concerns about the justice system being used to settle political scores. But filing charges against former leaders is not a radical step, either: Foreign democracies, including South Korea, Italy, and France, routinely manage to prosecute crooked former leaders without starting down a slippery slope to authoritarianism. President Nicolas Sarkozy of France was recently found guilty of bribery, a decade after his predecessor, Jacques Chirac, was convicted of corruption. France’s democracy and its image around the world remain intact. 

In the case of Trump, prosecutors would have plenty of potential crimes from which to choose. While Trump may be prosecuted for financial crimes he potentially committed before he became president, what is most important to go after are his actions during his time in office, especially those after the 2020 election, which culminated in fomenting a full-on, violent assault on American democracy.

First, there are Trump’s repeated attempts to obstruct justice, as documented in former special counsel Robert Mueller’s investigation into the former president’s campaign ties to Russia. As Mueller himself put it, while the investigators operated under the guidelines that a sitting president cannot be indicted — a view this editorial board disagrees with — the point of their investigation was to “preserve evidence” for prosecutors to evaluate after Trump left office.

Second, there are Trump’s efforts to overturn the Georgia election results. Trump’s call to Georgia’s secretary of state, in which he pressured the secretary to “find” enough votes to undo his defeat, was clear election interference, which is a violation of state and federal law. That means both Georgia and federal prosecutors can — and should — investigate the matter further.

Third, there’s Trump’s infamous incitement of insurrection, which he committed on national television. It is a federal crime to incite a riot or insurrection, and though Trump was impeached over this, he was wrongfully acquitted by the Senate, leaving the courts with the responsibility to hold him accountable. Even senators who acquitted him of the incitement charge alluded to the fact that his crime should be dealt with in the criminal justice system. “If you believe he committed a crime, he can be prosecuted like any other citizen,” said Senator Lindsey Graham, Republican of South Carolina, a longtime Trump ally. (And depending on how the investigations go — if prosecutors have enough evidence to show that Trump gave aid and comfort to insurrectionists — there’s a chance sedition charges could be brought against him, just like the charges his supporters who stormed the Capitol are likely to face.)

To avoid a potential political tit for tat, the Department of Justice and state prosecutors must remain completely apolitical in their handling of Trump’s case. “His crimes should be investigated independently, and the president should stay a thousand miles away,” Norman Eisen, a former ethics czar in the Obama administration, said in an interview. That’s exactly what President Biden has done so far, and he should continue to separate himself and resist any urge to weigh in one way or the other.

Congress’s failure to hold Trump accountable is one reason to break with precedent and prosecute him now. Another, perhaps more obvious reason, is that Trump’s misconduct ought to be handled differently because it was different. There’s a far stronger case that he committed serious crimes in office than could plausibly be made against even the country’s most unethical previous presidents. One of the reasons no president in history has been prosecuted for actions stemming from his presidency is that none of them before the 45th tried to instigate a coup.

The reluctance to prosecute presidents is deep-rooted, and extreme caution does make sense. (The last thing that the country needs is for Trump to be charged, tried, and then acquitted.) But it cannot be the case that there is no line — no hypothetical act of presidential criminality that would not rise to the level of seriousness that merits setting aside our qualms. And if one accepts that there is a line, it’s hard to imagine Donald Trump didn’t cross it. The events of Jan. 6, and those that led up to them, were an extreme abuse of power that few ever imagined a president would commit. A commander in chief tried his very best to subvert democracy. He attacked his own country. Five people died. Allowing him to go unpunished would set a far more dangerous precedent than having Trump stand trial. To reform the presidency so that the last four years are never repeated, the country must go beyond passing laws: It must make clear through its actions that no person, not even the president, is above them.

It's Time To Get Rid Of Qualified Immunity For Police

Recently, in Minnesota, Police Officer Derek Chauvin was convicted of murder in the death of George Floyd. But that was an unusual occurrence, and only happened because the entire incident was caught on tape by an innocent bystander. Most police officers accused of murder while on the job are set free by a jury. It is almost impossible to hold them criminally liable.

Another option for holding police responsible for misconduct lies in civil court, where they would be sued for their actions. Sadly, that is also a nearly impossible task. That's thanks to something called "qualified immunity", which makes police immune from civil action for conduct on the job.

But this is something that can be corrected. Legislatures (preferably the U.S. Congress) could do away with qualified immunity. Unfortunately, that is not something that the Republicans in Congress are willing to do -- even though a majority of the American public supports the elimination of qualified immunity.

The following is part of an editorial in The New York Times by that paper's editorial board:

Qualified immunity arose out of an 1871 civil rights law that made government officials, including police officers, financially liable for violating a person’s constitutional rights. In a series of rulings starting in the late 1960s, the Supreme Court decided that an officer is immune from liability unless it can be shown that he or she broke “clearly established” law in the process. The burden is on the plaintiff to make this showing, and the bar is absurdly high: If no other court has previously ruled in a case involving an essentially identical set of facts, the law is determined to be not “clearly established.”

Examples of courts splitting hairs to give a pass to even egregious misconduct abound: the prison guard who pepper-sprayed an inmate in the face “for no reason at all”; the officer who fired at a nonthreatening dog and missed, accidentally hitting a 10-year-old child lying nearby on the ground; the officers who stole $225,000 in cash and rare coins while executing a search warrant; the officer who shot a 14-year-old boy after he had dropped a BB gun and raised his hands. . . .

The Supreme Court has justified its creation by arguing thatofficials need “breathing room” to make “reasonable but mistaken judgments about open legal questions.” That’s true, but the police already enjoy many protections for their actions, especially in situations where they make split-second decisions.

In practice, qualified immunity has become what Justice Sonia Sotomayor has called an “absolute shield” that “tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

The court has also expressed the concern that individual cops will be bankrupted by judgments. This simply doesn’t happen. To the contrary, governments virtually always foot the bill for police wrongdoing. One study found that officers personally paid only .02 percent of the dollars that plaintiffs were awarded.

The problems with the qualified immunity doctrine are legal as well as practical. Initially, courts weighing claims against officers first had to decide whether the officer had violated any constitutional rights — for example, by using excessive force in violation of the Fourth Amendment. If the answer was yes, they moved on to decide whether the law regarding that right was clearly established. But a 2009 Supreme Court decision effectively eliminated that first step, allowing lower courts to jump straight to the second question, which they usually answered in favor of the cop. This creates a vicious circle: When courts stop considering what police behavior violates the Constitution, they leave both cops and civilians without a clear idea of what sorts of violations are considered clearly established. . . .

The Supreme Court started this mess, and it could just as easily end it. But despite a few recent cryptic opinions, meaningful reform doesn’t appear to be in the cards.

The more immediate solution is legislative. Congress is currently considering the George Floyd Justice in Policing Act, a far-reaching bill addressing racial discrimination and excessive force by law enforcement officers. One provision would eliminate the “clearly established” defense and prevent cops from relying on their own belief that their conduct was lawful. Unfortunately, that has become the bill’s main sticking point, as most Republicans have sided with police unions in opposing any liability for individual officers. . . .

While Congress debates, state and local governments are moving forward. In the past year, Colorado, Connecticut and New Mexicohave all passed laws barring or limiting the use of qualified immunity in certain cases involving police officers. In March, the New York City Council approved a bill that makes it easier for people to sue police officers under local law for unreasonable searches and the use of excessive force, and denies officers the defense of qualified immunity in those cases.

The bill’s opponents lobbed objections that were as familiar as they were misguided. “Ending qualified immunity will prevent the best young men and women in our city from joining the police force,” said Councilman Robert Holden of Queens. That’s like saying laws against robbery will disincentivize the best thieves. In fact, the best young men and women aren’t the ones we need to worry about.

If the rule of law means anything, it means that those sworn to enforce it should not be above it.