Yes, the Supreme Court COULD have declined the case, but then what?

“They could have just declined the case” is the overly simplistic but misleading version of Supreme Court law and practice being fed to laypersons by many celebrity television commentators who were rushed on air to breathlessly critique the Court’s grant of certiorari to Donald Trump’s presidential immunity petition.

But they’re not telling you the whole story.

Yes, the Court COULD have declined to take the case. But that’s only part of the story. Among the things the talking heads aren’t telling you is what would happen if the Court DIDN’T take the case.

Had the Supreme Court declned to hear the case, that would not have made Trump’s immunity claim go away or clear the way for him to be held accountable. It would have just settled the issue only for one case, the January 6th prosecution in the DC Federal District Court.

But it would not have been settled anywhere else outside of the DC Circuit, including in Florida where Trump has also raised the same immunity claim in his documents case.

It is possible that, unless the Supreme Court issues a ruling, Judge Aileen Cannon will accept Trump’s immunity argument, which would dismiss the case outright. But, regardless how she rules, the losing side would then appeal the dismissal to the 11th Circuit, which would take several weeks, if not months, to rule. Once they rule, the losing party would appeal and the same issue would be right back before the Supreme Court to be dealt with since it had not ruled on it previously – while the documents case sits on hold.

Same thing in Georgia. If the Court declined the DC appeal, the issue of immunity would remain unsettled everywhere else in the US and Trump would still have an opportunity to raise it anywhere else, including in his Georgia RICO case. If so, he would surely file a motion to dismiss on immunity grounds, just as he did in Florida. Again, whoever is on the losing ends would appeal to the state appellate court. Whoever lost there, would then appeal to the Georgia Supreme Court. And then – you guessed it – the immunity claim would eventually go back up to the US Supreme Court, while the Georgia case remains on hold.

In other words, if the Supreme Court had declined to hear this case, they may have sped up the Jnauary 6 trial, but would have allowed Trump to indefinitely delay just about any other criminal proceeding against him anywhere else in the country for much longer than it will take for the Court to permanently resolve the immunity issue raised in this case.

However, by taking this appeal now on a very expedited basis, the Court is going to settle this question once and for all. Their ruling will apply not just to the DC case, but to every criminal case involving Trump or any subsequent president in any court anywhere in the country. While it may delay this one trial for a few weeks or a couple of months, hearing this appeal will prevent huge delays down the road.

The television commentators aren’t telling you any of this. Instead, they are treating this case as a one-off and ignoring the many reasons that the Supreme Court decides to hear appeals and issue rulings in important cases. They are spinning only one scenario – that the Court “could have declined the case” as if, in refusing to take this case, they would have forced Trump to immediately face justice and there would have been no other negative consequences outside of this particular case.

These commentators have no idea why the Court took this case, which justices votes to accept cert, or how they’re going to eventually rule.

But rather than simply explain the legal issues, or, if they feel compelled to speculate, lay out the different reasons the Court could have taken up the case, they are speculating and second-guessing about motives and thought processes and evil intentions and getting laypersons who don’t understand federal appellate practice and procedure all worked up and anxious and suspicious.

Much of this is the result of them trying to cover their own butts after predicting for weeks that the Court wouldn’t take the case. Now that the Court proved their predictions wrong, rather than just admit they were mistaken, they are claiming the Court is doing something outrageous when they know nothing of the kind.

Yes, it is possible that the Court (or even just a couple of the justices) decided to take the case to delay or to get Trump off the hook. But it is just as likely – in fact, more likely – that the Court took the case for the reasons I described: to settle the matter firmly and finally so that Trump’s immunity claim is shut down everywhere for all time.

I don’t know the reason the Court granted cert. Neither do any of the legal “experts.” But, unlike them, I have taken the time to think this through and to try to provide a fuller understanding of how all of this works and am not just throwing out red meat to keep you angry and fearful.

Their approach to “legal analysis” is lazy, incomplete and irresponsible. Please don’t accept everything they’re telling you at face value. Their aim is not to educate or enlighten, but to entertain and agitate so the audience will keep coming back for more.

Let’s wait to see what the Supreme Court does. We may find that all the drama and angst provoked by th teevee talkers was a waste of time and energy.

My Old Man DID Know Something


My father, Judge Nathaniel R. Jones spent his life fighting for justice and change. He first answered the call as a young boy when he saw racial injustice and wanted to do something about it. His mother, knowing her fifth grade education would allow her to take him only so far (she went back and got her high school diploma in her 60s and valedictorian of her class …), made sure to expose him to people who could take him on the next stages of his quest.


Thanks to his mother’s foresightedness, young Nathaniel met and became the protégé of a local Black attorney who taught, guided, and inspired him.


J. Maynard Dickerson instilled in him a deep sense of hope – but not a blind faith. A hope that could be fulfilled with hard work and dedication and a constant focus on the goal. In turn, my father passed that hope on to me and the countless other people he mentored and influenced.


Daddy never stopped reminding me that progress can be made, if we believe and work for it. And he never let me give up or give in to despair. And he both taught and showed me the power of politics to effect change and always encouraged me to be a part of it.


Emulating his mother’s efforts to expose him to politics and the social justice movement at an early age, he did the same for me, folding me into his own activities long before I can even remember. My very first outing in life, the day after my parents brought me home from the hospital, set me on the path:


“On yesterday, we went to an NAACP meeting at church, where Nate presided,” my mother wrote in a letter to her parents. “Steffie was real good.”


That was the first of a long line of experiences Daddy included me in … carrying me in my little baby basket to the Los Angeles Coliseum to hear JFK give his acceptance speech at the 1960 Democratic Convention … Rousing my sister and me out of bed just after midnight so that we could greet Vice President Hubert Humphrey, who landed in the wee hours for an event the next morning during his 1968 presidential campaign … Taking me with him to the annual Gridiron Dinner and allowing me to sit on a bench outside the hotel ballroom so I could watch the movers and shakers come and go …


By 1972, I was ready to get directly involved. So, three nights a week after school, my parents dropped me off at the local McGovern campaign headquarters to volunteer. I felt very grown up and cool and thought that if I worked hard enough, McGovern would win.

So, I was devastated when he lost. After staying up crying half the night, I wandered into the bathroom where Daddy was shaving, sat on the edge of the tub, and told him I would not go to school that day. “Everybody will laugh at me.”


“Who cares what they think? They don’t know anything,” he said. “They’re just repeating what they heard their parents say. Losing doesn’t mean you were wrong. You did the right thing and worked for what you believed in. So you go to school and hold your head up. And if anybody laughs at you, laugh right back and tell them they picked the wrong man.“


(He also told me that Nixon wouldn’t finish his term because he would probably be impeached as a result of the “sabotage” that was just coming to light, but that’s another story …)


Thirty two years later, the morning after George W. Bush defeated John Kerry and my then-boss, John Edwards, I once again found myself sitting on the edge of the bathtub watching Daddy shave as I moaned about how awful the election results were.


He listened for awhile and then without missing a whisker, said “You think THIS is bad? Imagine how we felt in 1956 when Adlai Stevenson lost again – for the second time. And we didn’t have a Civil Rights Act or a Voting Rights Act or Members of Congress or governors or mayors. We didn’t just elect a Black man to the Senate. We didn’t have any of the resources or powers or tools that you have now. But we didn’t give up. We kept fighting. We focused on 1958 and got a Civil Rights Bill passed. And then in 1960, we elected Jack Kennedy president.”


“Progress isn’t like a freight train just barreling forward. It’s a pendulum that sometimes swings backwards,” he continued. “The important thing is not to let go, but to always keep pushing forward so that the next time, you move even further ahead.”


“So feel sorry for yourself all you want today. But tomorrow, get to back to work.”


Four years later, almost to the day, as I sat next to him watching Barack Obama declared the winner of the 2008 presidential election, I turned to him to see tears streaming down his face. I asked him if he was emotional because he thought he would never see this day.


“No,” he said softly. “I always knew I would.”


I reminded him of what he told me four years before about not giving up the fight.


He chuckled and said, ” Maybe one day you’ll figure out your old man knows a little something, kid.”


The eight years of Obama were hopeful ones for him and all of us. But he also saw the efforts to roll back those gains and he consistently warned us all to be vigilant. Not to sit on our laurels or to believe the fight was over.


And sure enough, as he dreaded, despite his efforts, 2016 saw the election of Donald Trump.


That election broke my father’s heart. It wasn’t just the fact that the country had elected someone so unfit, but that so many of his friends and colleagues supported a man and a movement that were hellbent on destroying everything he believed in, had worked for, fought for his whole life.


In the weeks after the election, he wrote to an old friend:


“It seems that all I believed in and hoped for is about to wind up in rubble. The inherent goodness that I believed to be buried inside of most people, is nonexistent. The rationales given by the so-called angry masses for electing a character such as Trump do not pass the test of reasonableness. I am angry, depressed and just plain disheartened as I realize that mortality tables say that I will not be around to contribute to any rebuilding or restoration that takes place, if it ever does.”


“If it ever does …” These words are one of the few instances I know of that Daddy admitted that his faith was so badly shaken – the pendulum had swung back so far – that he feared we might not recover from a dire situation.


But over the next three years, he continued to work and continued to fight and, as his body weakened and his strength waned, he frequently expressed frustration that he wasn’t physically strong enough to engage as much as he wanted, but he kept trying.

Even during his last illness, he repeatedly insisted he needed to “get out of here and get back to work.”


He never stopped believing there was something to fight for. And he never stopped believing that fight was worth it and could be won.


Just a little over a month before he died, I sat beside him in the hospital, my feet propped up on his bed as we ate ice cream and watched the House of Representatives impeachment vote.

When Speaker Nancy Pelosi announced the vote and slammed down her gavel, Daddy pumped his fist, gave a thumbs up, firmly nodded his head and said, “GOOD!”


He knew the Senate would not vote to convict – “The Republican Senators don’t have the guts,” he said – but he believed the impeachment was a step in the right direction. And he felt hope again that this country he loved would right its footing and begin once again, to bend the arc back toward justice.


As he predicted, Daddy didn’t live to see that happen. And throughout 2020, I worried that it never would. Covid, George Floyd’s murder, the summer protests, an increasingly erratic and dangerous president instilled grave doubts. But throughout that year, I continued to work with hope and belief, because that’s what my father taught me to do.


On election night 2020, the first ever without my father, when early returns made me fear that the country had lost its collective mind and would keep an unfit despot in power, I felt frightened and alone. But then I heard Daddy’s calming, steady voice in my heart, clear as a song: “Stephanie, Stephanie! Calm down. They haven’t even counted the votes yet. Be PATIENT!”


And, as usual, he was right. Because when the counting was done, Joe Biden and Kamala Harris won a clear victory. A step back from the brink and toward the right path.


In the three years since that election, we’ve had setbacks, but we’ve also made progress. The Supreme Court’s extremist conservative majority has ground its heel into civil rights, workers’ rights, affirmative action, and women’s reproductive rights. But we have also seen grassroots movements push back with great success and have elected good people to the House, Senate, governorships, state legislatures, and city government. We have celebrated the appointment and confirmation of a record number of highly qualified federal judges committed to civil rights and justice, including the first Black female Supreme Court justice.


We are now heading into another consequential presidential election, as important as any in my – or my Daddy’s or the nation’s – lifetime. The outcome will determine whether we will continue on the road my father helped to pave or lurch backward on a path this country may not survive.


As I look forward toward the fight ahead – four years to the day since my precious father’s great and good heart gave out – I am encouraged and strengthened by the example he set for me since I was a baby. I urge everyone else who cares about justice, peace and the country and world we all live in to also remember the lessons The Good Judge taught us:


Change is possible, and progress, while slow, is not only possible, but inevitable … IF we work for it, fight for it and never, ever give up. And if you feel it’s too much to bear, take a moment or a day to feel sorry for ourselves. But tomorrow, get back to work.


Daddy was right far more often than he was wrong. But he was uncharacteristically incorrect about one thing: his prediction that “I will not be around to contribute to any rebuilding or restoration that takes place” was way off. He may not be here in person, but whenever any of us who loved him and learned from him grasps the arc of the moral universe and bends it even a little closer toward justice, his hand is on ours and he is contributing to the rebuilding and restoration he dreamed of.


Thank you, Daddy. We’ve got this because you showed us how.


Funny thing, it turns out my old man did know a little something, after all.

Stop Whining and Get to Work!

Whenever I push back on political negativity of the “Biden’s too old and can’t win!” and “I’m so scared Trump is going to win!”, I’m asked “But what can we do?”

Here are a few suggestions:

  1. Follow the White House, President Biden and Vice President Harris, among others, on social media to stay on top of what they are doing, the issues and policies they explain, and the accomplishments they regularly tout;
  2. Share information with your friends, family, co-workers and acquaintances about the positive things the Biden-Harris administration is doing;
  3. Contact your local Democratic Party headquarters, NAACP, Urban League, League of Women Voters or other progressive political organization or non-profit civil rights rights organization to volunteer to help get out the vote;
  4. Stop talking up Nikki Haley and don’t even consider voting for her in the primary;
  5. If anyone tells you they are thinking of voting for Nikki Haley in the primary or, God forbid, the general, because she’s supposedly “more moderate” than Trump and they can “live with her,” explain to them that she is NOT more moderate the Trump and, in fact is probably MORE dangerous because her policies are indistinguishable from his, but she dresses them up in pretty colors and a soft voice, which will fool a lot of people who finally got around to seeing through Trump;
  6. Remember that the only difference between a Nikki Haley presidency and a Trump presidency will be fewer mean tweets. Everything else – Court appointments, racist policies (slavery? racism? What’s that?) anti-woman agenda (she’s promised to sign a nationwide ban on abortion), the implementation of Project 2025, draconian economic policies that favor the wealthy and stomp all over the middle class, working class, and poor, etc. – will be indistinguishable from Trump;
  7. Stop the handwringing and doomsaying. There is a time for venting and catharsis and a time for squaring our shoulders and getting to work. We are past the time for fretting. It’s time to get to work;
  8. Stop publicly criticizing Biden and Harris, online and elsewhere. We know they’re not perfect and don’t need to be told that over and over, especially when that gets in the way of the work that must be done. Keep in mind that there are plenty of people reading what you write and hearing what you say who are absorbing, internalizing and repeating the negative and often false information being disseminated about Biden and Harris. There are also, no doubt, some infiltrators who are gathering such comments to weaponize against Biden and his campaign. Please don’t contribute to that;
  9. When someone you know criticizes Biden or Harris, tells you Biden’s too old or Harris doesn’t smile enough (or smiles too much) or somesuch, wishes someone else will run, or threatens not to vote or vote third party, instead of rushing to social media to tell the rest of us what they said and why that’s a problem (we already know), take the time to share with them facts about the Biden/Harris record, explain the stakes we are facing, and help them understand that this election is a binary choice and how important their vote is.

Those are just a few of the ways you can help.

But complaining and worrying are toxic, spread poison into the political waters, and doesn’t do any good for anyone. Venting this way in these spaces simply spreads doubt and undermines the work that needs to be done.

We know you’re scared. We’re all scared (or should be). But the only way to fight this fear in politics is to get out here and do the work. Giving in to it (and, after a point, venting without work IS giving in to it) will only make it more likely those fears will become a reality.

Please be a part of the solution.

We got this!

The “Primary Crossover” isn’t the flex you think it is: Just VOTE BLUE!

There’s been an alarming uptick in calls in social media urging women to cross over into Republican primaries to vote for Nikki Haley based on a belief that it’s some kind of clever multi-dimensional chess move that could knock Trump out of the nomination.

But it is is a BAD idea – VERY bad – for many reasons. Here are a few of them:

1.         It would take a huge, carefully implemented concerted effort and a massive shift in votes from Biden to Haley – tens of thousands and likely hundreds of thousands – to make any noticeable difference in the outcome. A few hundred or even a few thousand votes from random voters aren’t going to change the winner of the Republican primary.

And this would have to be done, not just in New Hampshire and South Carolina, but in state after state after state afterward. We don’t have that kind of bandwidth.

2.         While such a crossover effort wouldn’t hurt Trump, it would, however, reduce participation in the Democratic primaries – possibly enough to make it appear that President Biden is losing support and that Democratic voters are not enthusiastic about his reelection.

Biden needs strong showings in all of the primaries, not just to win – which is a foregone conclusion – but to demonstrate strength and robust support from the base and from Independents, something that is absolutely critical for shaping a positive message going into the convention and the general election.

But if it appears that he is bleeding support or is getting fewer or not significantly more votes than he did in 2020, that will hurt him badly and feed the media narrative that Biden is not a popular candidate, when that is simply not true.

3.         Biden wouldn’t be the only person hurt by this gambit. Democrats voting in the Republican primary could also undermine down-ticket Democrats who need votes but won’t be on the Republican ballot and thus, would lose a substantial number of votes.

It is essential that we not only reelect Biden and Harris, but also a elect a Democratic House and Senate and Democratic state legislatures for many reasons.

One of the most pressing reasons is the fact that we need that the January 6, 2025 Electoral College vote certification to be conducted in a House chamber under the control of Speaker Hakeem Jeffries and the Democrats, not Speaker Johnson and the MAGAs.

The crossover game will water down the votes for good Democratic primary candidates, making that goal harder to achieve.

4.         Democrats voting in the Republican primary will produce skewed numbers that will throw off Democratic fundraising, strategizing, and planning for the fall Get Out the Vote effort.

The national and state Democratic parties use primary voting numbers to help surgically target their GOTV and that requires solid, accurate numbers and information about who and where the likely voters are, how they’ve voted, and who needs to be persuaded and flushed out on Election Day

The crossover game would provide inaccurate information to the parties and also likely suppress fundraising needed to pay for these party GOTV efforts. That will be a serious problem for the general election.

5.         And, finally and perhaps, most important – the national and state Democratic parties are actively discouraging this plan … because they know better than any of us what is needed, what will work, and what won’t.

The notion that some voters here and there know better how to do political strategy than the party, political experts and campaign operatives who have been analyzing this and working on this day and night, just makes no sense. None of us knows a fraction of what they do and it is really foolish and rather presumptuous for any of us to think we understand the numbers, the polling, and the other ins and outs well enough to craft our own strategy based on what we’ve heard and read pundits say on TV and in social media about the state of the race.

If the party and campaigns are not asking us to do this and aren’t telling us how to pull it off – and, in fact, are telling us NOT to do it – we should take the hint and not take it upon ourselves to come up with our own disjointed stealth guerrilla warfare plan.

In this monumental election, everyone has a lane. Our lane should be to vote for Biden and Harris and Democrats up and down the ticket, and to do everything in our power to get as many other people as possible to vote for them, as well. Please leave the political gamesmanship to the people responsible for that who know what they’re doing.

Please VOTE BLUE in the primary and then VOTE BLUE in the general election and do our part to save our democracy!

Message to white allies: Look beyond Dr. King’s “dream” … and into your own hearts


I write this message with love to my white allies in the fight for civil rights and racial and social justice:

On this Martin Luther King Day, I encourage you to refrain from the temptation of repeating out-of-context quotes that soothe, but don’t provoke any desire for action or true change.

Instead, please read and thoughtfully and humbly consider sources that give us a sense of the real Dr. King, not the milquetoast minister gently longing for a time when everyone can just get along.

Contrary to the Disneyfied caricature he has unfortunately been shaped into, Martin Luther King was a radical activist who demanded change and provoked fear in and harsh condemnation from many white Americans in his time.

Foremost among those who tried to muffle him were white moderates who, like many of their modern-day progeny, were all-too-certain that not only were they indispensable allies, but that allyship meant they could dictate the message, means and tones Dr. King and other African Americans should use to force that change.

So, while you will be inundated today with clips from the I Have a Dream speech and Dr. King’s quotes about love and peace, I urge you to also read his more incisive and uncomfortable words about the fight for justice and what it means to be an ally in that fight.

Among the most powerful of these teachings is Dr. King’s Letter from a Birmingham Jail, which he directed to white clergy who had urged him not to launch a protest in the city because it would be too provacative and “now is not the time.”

“I must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro’s great stumbling block in his stride toward freedom is not the White Citizen’s Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to ‘order’ than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: ‘I agree with you in the goal you seek, but I cannot agree with your methods’ … Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.

“Now is the time to make real the promise of democracy and transform our pending national elegy into a creative psalm of brotherhood. Now is the time to lift our national policy from the quicksand of racial injustice to the solid rock of human dignity.”

If you do nothing else today to honor Dr. King, please read and then engage in some honest self-reflection of this powerful polemic that could just have well been written this morning.

https://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html

Thank you, Mr. Antonacci … Since-Rely

It may not be common for a 60-something-year-old woman to break down in tears upon hearing of the passing of one of her elementary school teachers.

But everyone did not have Joe Antonacci, Sr. for sixth grade.

Mr. Antonacci was a wonderful teacher. Because of him, I can do timetables in my head and still name the capitals of scores of countries – and, if asked to do so, could surely point to them on a map with a rubber-tipped wooden stick in less than 30 seconds.

Thanks to Mr. Antonacci, I know when to write “principal” instead of “principle,” and “stationary” instead of “stationery.”

And I think of Mr. Antonacci whenever I write a business letter because he taught me how to always spell “sincerely” right. (Just think “since-rely,” which I repeat in my head every single time I write the word).

But more important, I can remember what it felt like being the only Black student in my sixth-grade class (and one of fewer than a handful in the entire school), having moved to a new town at perhaps the worst time a child could be dropped into an unfamiliar environment, struggling to fit in with a cohort of white kids who had been together since kindergarten, and to have a teacher show extraordinary kindness and patience toward me and such unflagging confidence in my intellect and abilities that I didn’t shrink, but thrived.

Mr. Antonacci made a difference in my life, and I am and will always be grateful to him.

I’m glad that we reconnected later in life and I had several opportunities to tell him how much I appreciate all that he had done for me. And it was always a pleasure to hear him talk about the immense pride he felt, not only in me, but in all of the students whose lives he had touched.

Mr. Antonacci’s death makes me sad, but memories of him warm my heart and remind me of the good we can do.

Thank you, Mr. Antonacci for the great and gentle good you did. I will never forget you.

Since-rely,
Your forever grateful student

The How and What of disqualifying Trump under the 14th Amendment

A lot of discussion has occurred in the past couple of days in the wake of the rulings by the Colorado Supreme Court, upholding a lower state court’s decision that Trump should be removed from the ballot on the grounds that he engaged in insurrection and is thus disqualified under Section 3 of the 14th Amendment, and the Maine Secretary of State’s decision to do the same.

Many people cheered the decisions and believe this to be the first step in disqualifying Trump in key states around the country.

But not so fast.

I’m urging y’all not to get your hopes up about this since you’ll probably end up very disappointed.

If these cases get to the Supreme Court – which they surely will – they will almost certainly reverse these decisions – and it will likely be unanimous with even the liberal justices voting to reject the states’ decision.

This is because a Secretary of State does not have the power to unilaterally remove Trump (or anyone else) from the ballot under Section 3 of the 14th Amendment based on an administrative hearing. By the same token, it is very likely that the Court will hold that a state court also lacks the authority to take such action based on evidence garnered in the civil case brought in Colorado.

I know this may seem to contradict what some legal commentators have been writing and saying on television. But that is because, for the most part, they are focusing on only one aspect of the issue and not telling the full story.

Constitutional analysis and application is extremely complicated and nuanced and does not lend itself to the kind of shallow commentary we’ve been seeing. Many of the commentators discussing this make it seem pretty simple “Donald Trump engaged in insurrection, the 14th Amendment prohibits people who engaged in insurrection from holding federal office, so BOOM, knock him off the ballot.”

But among the many aspects of Constitutional analysis that must be considered, there are two tracks that must be addressed: the “what” and the “how.” Most of these commentators – including Judge Michael Luttig and Professor Laurence Tribe – are focusing almost exclusively on the “what,” while ignoring the “how.”

The “what” is whether Trump engaged in insurrection as covered by the 14th Amendment. Most sane observers believe he did. But the analysis can’t and doesn’t end there because the 14th Amendment isn’t “self-executing,” i.e., it doesn’t automatically implement itself. There are additional steps that must be taken in order to enforce it – that is the indispensable “how,” also known as Due Process.

The drafters of the 14th Amendment Section 3 gave Congress the power to create a procedural mechanism for enforcement. But, Congress has not done that. That means there needs to be another mechanism for enforcing it, but that mechanism must comport with the 14th Amendment’s Due Process clause.

(There are also other procedural questions that must be addressed, such as standing, but that’s for another day).

Some observers claim that the Due Process Clause isn’t applicable because it only applies to the deprivation of “life, liberty and property.” However, the courts have generally treated the right to run for and serve in federal office as a property right. No less a jurist than Supreme Court Justice Salmon P. Chase has made clear that not only is Section 3 not self-executing, action taken under it must comply with the Due Process Clause. And, in fact, even the majority in the Colorado case recognized the necessity to comply with the Due Process Clause.

In particular, a person can’t just be declared an insurrectionist because we are sure he is or because we “saw it on TV.” There must be a fair and robust adjudicative process for drawing that conclusion and for applying the 14th Amendment prohibition to that individual. There is no question that a criminal conviction meets that standard of Due Process.

Had Congress set up a process for adjudicating guilt outside of the criminal justice system, that likely would have also complied with Due Process.

But here we have no criminal conviction and no Congressionally-authorized procedure. So the Supreme Court must now deal with how the 14th Amendment can be enforced.

The question the Supreme Court will likely have to deal with is whether, in the absence of a criminal conviction or special procedure, will any other process for disqualifying a federal officer from serving meets Due Process requirements.

Contrary to the slam-dunk some commentators have convinced their audiences this is, it is not clear how the Supreme Court would or should answer that question.

The Court could rule that Section 3 can be implemented only through a procedure Congress was authorized to create, but didn’t.

Or the justices could rule that, in the absence of any other mechanism set up by Congress, the only appropriate basis for determining whether someone engaged in insurrection under the 14th Amendment is a criminal trial and conviction of that crime (or it’s equivalent). And since Trump has not been convicted, the states can’t apply the 14th Amendment to him.

It’s also possible they will find that a criminal conviction isn’t necessary, but other types of adjudication are permissible – IF that adjudicatory process includes the same types of procedural and constitutional safeguards found in a criminal trial (e.g., full discovery and disclosure, strict rules for the admissibility of evidence, sworn testimony and with right to confront and cross examine accusers, etc.).

But, even if the Court finds that an alternative procedure may be acceptable, there is little doubt that it would conclude that a one-day administrative hearing conducted by a Secretary of State or a hearing held in a state civil action by a state court judge, don’t even come close to satisfying the 14th Amendment’s Due Process requirement.

Applying either standard, the Court is likely to reverse the states’ decisions to keep Trump off of their ballots

And therein lies the problem with many of the public comments that commentators have been making: They have completely left out the process issue and focused only on the substantive issue (“We all know he’s guilty, so what else needs to be decided?). But before the Court can even reach the issue of whether or not Trump actually committed insurrection and is, thus, disqualified from service, it must find that the process used at the state level satisfies the due process clause. And I have no doubt that it will find that the process used in the Colorado and Maine does not pass Constitutional muster.

And the justices would be correct. No state official should have that degree of power over federal elections and who can serve in federal office. While many people are thinking only of Trump, allowing such a process would also allow state officials around the country – including in Florida and Texas – to bar people from serving based solely on their unilateral declaration that they are disqualified under the 14th Amendment. More than chaos would ensue – that would trigger a Constitutional crisis and utter destruction of our democratic process.

I know this is not the take some people want, but if we are to be a nation of laws, we must apply those laws fairly and faithfully, even when it results in outcomes we don’t like. That will probably be the case here, so I’m encouraging everyone to refrain from jumping into the rabbit hole dug by commentators who aren’t telling the whole story. Instead, please approach this thoughtfully and stop demanding the legal process do what should be handled in the political process.
Instead of wasting precious time and energy hoping that Trump will be disqualified, we should focus our efforts on ensuring that Joe Biden and Kamala Harris get the electoral votes they need to win a second term, regardless who the Republican nominee may be.

Please shift away from trying to grapple with the hows and whats of the 14th Amendment and let’s keep our eyes on the prize.

New Bottle, Same Old Wine

Please don’t get too upset that an insurrectionist, anti-woman, anti-choice, anti-LGBTQ right wing extremist has just been elected Speaker of the House.

The House Republican Caucus and the Republican Party have long been controlled by insurrectionist, anti-woman, anti-choice, anti-LGBTQ right wing extremists.

And Kevin McCarthy, whom some people mistakenly believe is a moderate (there ARE no moderate Republicans in the House), held the Speaker title and position, but in reality, he was completely under their control. Every move he made was dictated by or an attempt to cater to the extremist Republicans who were handed power and now dominate the party.

So, the fact that the new Speaker is an open extremist doesn’t really change anything substantively. The Republican agenda is the same, they still have the same numbers in the House, and they will still continue to do the same things they have been doing all along.

The election of this Speaker will simply make it clearer to the public what and who the Republican Party is now that they can’t hide behind a MINO (“Moderate In Name Only) Speaker.Too many people voting Republican in the belief that “they’re not all bad,” is what got us here.

Maybe now that the figurehead of the party accurately reflects who the Republicans truly are, people will step away from the notion that there is any hope for the Republican Party and understand that the ONLY way to save this country is to VOTE BLUE up and down the ballot.

Fani Willis Ain’t Going Nowhere Soon

Thanks to some misleading reporting last night, lots of folks are now fretting that Fulton County District Attorney Fani Willis will be removed from office and the Trump prosecution stopped as early as October.

Let me calm your fears. While it is always possible, it is not likely to happen the way some people assume. And it’s definitely not likely to happen on or immediately after October 1.


Here are some facts and the law:


First, the law in Georgia is very different than the Florida process that allowed Ron DeSantis to unilaterally remove state officials.


Georgia SB 92, passed in May, sets up a Prosecuting Attorneys Qualification Commission which has the power to “discipline, remove, and cause involuntary retirement of appointed or elected district attorneys” in accordance with Article VI, Section VIII, Paragraph II of the Georgia Constitution.


This Commission must be filled by former elected District Attorneys, former elected judges, and former assistant District Attorneys. Some appointments have already been made, but the Commission has not yet been fully staffed.


The statute sets out very specific grounds for removing a District Attorney, most of which would not and could not be applied to DA Willis. The closest possibility is the consideration of a complaint on the grounds that she made a charging decision based on undue prejudice against the accused.


It would be difficult for anyone to argue that the Trump indictment was a “charging decision” by the District Attorney since Trump was not charged by the DA; his indictment was handed up by a grand jury pursuant to the legal grand jury process. The Trump indictment was a charging decision by the grand jury, not the DA.

But even if someone tried to have Willis removed as DA on the ground of this or other charging decisions she has made, Willis has proven herself to be extraordinarily skilled and extremely savvy; it would be foolish to assume that she has at any point left herself vulnerable to such a charge.

But even if the panel accepted with a spurious complaint against Willis, the process for investigating and removing a DA is long and rather complicated and could not be completed overnight. Moreover, there is an appeal process in the case of removal, and that would also delay any effort to remove her. In addition, there are other avenues of appeal that could be taken outside of the process set forth in the statute.

Also, a group of state district attorneys has already sued to strike down the law, and that will have to work its way through the courts and it’s possible that could further stall any implementation of the law. It is likely that if an attempt to remove Willis were launched, the action would be enjoined by the court.


So, while it is certain that Trump’s minions will try to have Willis removed under this new law, and although it is possible that she could eventually be removed after an extended and complex process, such a possibility is so far down the road it is not worth getting ourselves worked up over it right now.


Donald Trump was indicted in a major RICO case yesterday. That is huge. There’s no point in looking down the road for pitfalls that haven’t occurred, aren’t certain to occur, and over which none of us has any control anyway.

To quote Tom Hanks as Jim Lovell in “Apollo 13”:

“There are a thousand things that have to happen in order. We are on number 8. You’re talking about number 692.”


Please don’t fall prey to the hysteria the media is paid to generate and has a vested interest in maintaining at each stage of this process.


This is a long game. Keep your eye on the ball.

Stay in the fight

I am thrilled, relieved and gratified that Ohio voters stepped up with such fierceness to overwhelmingly defeat the Republican effort to strip away our rights.

I am also really pleased that so many Ohio women were instrumental in this victory and happy to see Ohio’s white women lean in so hard.

This is especially satisfying coming less than a year after the midterms in which a majority of Ohio’s white women voted to reelect Gov. Mike DeWine and to make JD Vance Ohio’s junior senator.*

Much of the shift between last year and now was likely because Issue 1 was so obviously intended to lay the groundwork for making it impossible for Ohio voters to protect reproductive rights in November, that everyone got it and got on board.

But this threat to women and others should have been apparent during last year’s midterms, yet a majority of white women in the state voted for an openly anti-choice governor and senator just a few months ago.

But better late than never …

I’m sure that women of all races will again rise to the occasion this November to approve the Ohio constitutional amendment that will protect women’s reproductive rights.

But then what?

Will these victories and the campaigns that led up to them open the eyes of those white women who previously supported anti-choice, anti-civil rights and often openly racist candidates when they thought they wouldn’t be personally harmed by their policies?

Will these women realize that it will be absolutely critical to vote Blue up and down the ticket, because while Trump is often the object of their ire, he is not really the problem. He’s just the most obvious symptom.

The real problem is the Republican Parry has sold itself lock stock and barrel to the most extreme elements in the country, with the complicity of “good Republicans” who have silently gone along with it.

As a Black woman who has been in this fight for longer than I care to say, I am glad that so many white women joined the effort and linked arms with women of color to beat back this threat. I now beg my white sisters not to take a victory lap and then leave the field to return to their places of comfort and privilege, holding their tongues for the sake of politeness and neighborliness, tuning out future battles because they think the outcome won’t harm them.

PLEASE stay in the fight and vote Blue (Go Sherrod!), drive Republicans out of state and local offices, and fight racism, misogyny, homophobia and transphobia, wherever and in whoever it arises.

The Ohio Issue 1 fight showed you what you’re made of and that if you stand with us, we can move mountains and stop the flood.

Source,: NBC News: “Ohio Governor Election Results 2022” https://www.nbcnews.com/politics/2022-elections/ohio-senate-results