BANANA REPUBLICANS

It is the mark of a "Banana Republic" that the autocratic leader take absolute control of the three organs of government we proudly proclaim to be central to our great democratic society writ large in our Constitution: Article I, (an independent legislature,) Article II, (a responsible and effective executive branch,) and Article III, (an independent judiciary,) with each branch having some control to prevent any excesses of the others. We teach our 6th grade school civics classes that this is called "checks and balances."

This has been a bad week for checks and balances and a good week for Banana Republicans.

The Decline of Article III: The Trump Tax Return Litigations:

Essentially two cases: i) House subpoenas for Trump tax and business records, and ii) a N.Y. Grand Jury subpoena for basically the same material--the Vance case.

The Supreme Court has, it appears, rejected Laura Ingraham's claims that the alleged rise in Covid-19 deaths is a hoax manufactured by the left in order to hurt the president. Accordingly it has decided to hear oral arguments by telephone. And it allowed the public to listen in.

I listened in. To most of it. At some point I quit. Too painful. Too depressing. While I remain an optimist about the November elections, they can't come fast enough.

Legal experts have opined from the git-go that Trump's objections to both sets of subpoenas were totally lacking in merit. I claim no Constitutional expertise, but I thought so too. I actually read the leading precedents, Eastland, Clinton, Nixon, (hey, you are my only clients!) and concluded Trump's lawyers were pushing a big rock up a steep hill. Trump could not prevail -- IF this group of Supremes would honor precedent, logic, and Constitutional mandates.

But from what I heard yesterday, I can only conclude the right wing of the court doesn't give a damn about those things. These guys work backwards, i.e., they decide on the result they want, and then create arguments and pseudo-legal principles to support their pre-conceived conclusions. This is a Trump court, period.

My prediction:  

As to the congressional subpoenas, the majority will ignore precedent, create a new standard, and then decide the subpoenas do not meet the standard they just created for the purposes of this case. Accordingly they will likely strike down the subpoenas. Possibly, to put lipstick on that pig, the court will send the case back to the District Court to start the legal process all over again to determine whether the House meets the new bullshit standard. In no way will that process be completed before November 3, 2020.

The Vance subpoena is a much tougher case for Trump, but Gorsuch, Alito, Kavanaugh, et al are up to the task. They will find a way ignore the unanimous Clinton and Nixon Supreme Court precedents, and send the case back to the District Court for further proceedings. Those hearings will reach the same conclusion: the subpoena should be enforced. And ultimately, after all appeals have been exhausted, District Attorney Cyrus Vance will get the documents, -- some time in late 2021 or early 2022.

Of course, inasmuch as all Trump's defenses, so far, depend upon his incumbency, If all goes well on November 3, Trump's defenses will become moot at noon on January 20, 2021.

The Flynn Dismissal: Bye, Bye, Article II

The corruption of the Executive Branch this week was the shocking use of the Department of Justice to obstruct justice by dropping the prosecution of the admittedly guilty Trumpster, Michael Flynn. Recall, please, that he is the guy whom Trump asked Comey "to go easy on."

In what was called by the press as a "soft pardon," Attorney General Barr, over the objections of the prosecutors in charge of the case, manufactured a meaningless excuse to drop the case against the former Trump National Security Adviser, who lied to the FBI and the Vice President about three different subjects (conversations with the Russian ambassador about sanctions, Israel, and Flynn's secret work for the Turkish government.) Flynn twice pleaded guilty to those charges. In one of the hearings, Judge Sullivan (a reputed pro-defendant judge) told Flynn:

 “You lied to the FBI about three different topics and you made those false statements while you were serving as the national security adviser, the president of the United States’ most senior national security aide. I can’t minimize that,” Sullivan said. “Arguably, that undermines everything this flag over here stands for. Arguably, you sold your country out."

Barr's move to dismiss those charges is unprecedented. Faced with a petition signed by former DOJ prosecutors, Judge Sullivan has responded with an equally unprecedented order providing an opportunity for amicus briefs on the issue of whether he should grant the DOJ's motion to dismiss the prosecution!

And of course, this follows the Barr pattern, when he overrode his prosecutors respecting the sentencing recommendation for convicted perjurer Roger Stone, in what might be called a "soft commutation."

Oh, yeah, for what it's worth, we also have this week a Trump threat to indict Barack Obama for some  unspecified crime.  Ahh, the return of General Secretary of the Communist Party and Premier of the Soviet Union Joseph Stalin. There is nothing more indicative of the decline of democracy than the use of executive power to manipulate the justice system so as to punish political adversaries.

Mitch McConnell, Abuser-in-Chief of Article I

Remember Merrick Garland, the Obama Supreme Court designee whom McConnell refused even to grant a confirmation hearing because it was an election year? Then we got Trump, and Trump begat Kavanaugh (who will beget a bastardized decision on the subpoena questions! It all fits together like a Lego monster.)

Nothing in the Constitution supports this McConnell stratagem respecting Garland, and nothing in the Constitution bars McConnell from ignoring his own precedent and moving to confirm a Trump nominee if there if a court vacancy occurs between now and January, 2021. Indeed, McConnell has promised the Republicans he will do just that. Would the Senate Republicans rise up and refuse to participate in such a scuzzy scheme? Does a bear poop in a tree?

Conclusion:

Today's Republican Party has crafted a perfect storm of de-democratizing the country. Each branch has cooperated to "take over" the other branches and punish the opposition via the use of judicial, executive, and legislative power.

Advice to 6th graders: Forget your textbooks: "Checks and Balances" now refers only Trump's bank accounts.

A bientot.

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