Three Questions and Answers about Trump's Immunity by Joyce Vance

 

How soon can Judge Chutkan hold additional proceedings in the District of Columbia case now that the Supreme Court has decided the immunity issue?

Courts can only take action when they have jurisdiction over a case, and frequently, when a case is on appeal, the trial court loses its jurisdiction. That’s the situation here. So Judge Chutkan has to wait until the Supreme Court returns jurisdiction to her before she can take any action.

That process is usually referred to as “issuing a mandate,” which is just a fancy way of saying that the appellate court sends the trial court notice of its decision and restoration of jurisdiction to take any necessary additional steps in the case. There is a slight twist when we’re talking about the Supreme Court returning a case to a federal court. Under the rules, issuance of a formal mandate isn’t necessary unless it’s specially ordered, which doesn’t seem to have happened here. So it’s technically correct to say that the “judgment” will issue here, not the “mandate.” You’ll hear a lot of lawyers refer to this as issuing the mandate, nonetheless.

When does the judgment issue? Under the rules, parties have 25 days to seek rehearing of a decision by the Supreme Court. The judgment, or mandate, issues seven days after that deadline. So, we can expect jurisdiction to be returned to Judge Chutkan 32 days after the Supreme Court issued its decision, which should be on Friday, August 2. After that, she is free to hold a status conference to determine how the case should move forward or schedule a hearing.

In the class of presidential conduct where presumptive immunity applies, the government can overcome the presumption by establishing that a prosecution won’t impair a president’s performance of his official functions. Since prosecutors, because of the Office of Legal Counsel Memo, can only indict a president after he’s out of office, how could a prosecution, and specifically Trump’s, impair his performance of official functions since he is no longer the president?

This is a great question, and I have to give you one caveat before answering it: the Supreme Court’s answer isn’t mine, and I don’t like it. They’re focused on theoretical future presidents, not on Donald Trump.

The Majority opinion refers to the situation with Trump as “transient.” They write, “This case poses a question of lasting significance: When may a former President be prosecuted for official acts taken during his Presidency?” Chief Justice Roberts notes that, “[I]n addressing that question today, unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies. In a case like this one, focusing on ‘transient results’ may have profound consequences for the separation of powers and for the future of our Republic…Our perspective must be more farsighted, for ‘[t]he peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.’”

That’s how the Supreme Court of the United States ducks responsibility for letting a would-be insurrectionist escape some or all of the consequences of his conduct: with an appeal to preserving the separation of powers. The Supreme Court can’t afford to “fixate” on Donald Trump, a mere “present exigency.” They leave that up to politicians and the public at large, as though focusing on the fact that the defendant before them is a former president who tried to overturn an election is beneath the consideration of this Court.

Instead, their concern is that a future president might be chilled from taking the “bold and unhesitating action” required of an independent Executive. That’s more important than holding former president Donald Trump accountable for the criminal conduct he aimed at the heart of the Republic. Chilling boldness is the impairment of a president’s performance of official functions that the Majority is more concerned with.

Will the immunity decision have any impact on the Mar-a-Lago classified documents case?

Trump was no longer president when he committed the crimes he’s charged with in the indictment in the Southern District of Florida. He’s charged with possessing the documents in Florida, not with taking them out of the White House. And the obstruction charges occurred entirely after he left office.

But, the Judge in the Florida case is Aileen Cannon, so we can expect lots of delay and some convoluted reasoning when she rules. The Supreme Court’s decision gives judges a lot of latitude—and very little guidance—for deciding what constitutes official conduct. It’s not hard to imagine some pretzel logic decision-making that suggests that because charges about the possession of classified documents go to a president’s core constitutional duties, Trump is entitled to immunity and can’t be prosecuted.

None of this is legally valid. Trump left the White House and returned to Florida. He possessed boxes of classified documents in his Mar-a-Lago home and refused to return them to the government when asked to do so, taking deliberate steps with his co-conspirators to conceal them. There was no performance of official duties involved. In fact, hiding classified documents the government wants back because they’re critical to national security seems to be the opposite of performing official duties. So we will wait to see what Judge Cannon does, but there is the potential for her to try to use this to end the case.

Something else to look for in the Mar-a-Lago case is whether Justice Thomas’ concurrence will make an appearance. It addresses, seemingly from out of nowhere, an issue Trump has raised in the Florida case. That issue involves whether or not the Special Counsel was lawfully appointed, and we’ve recently discussed the two days of hearings, including oral argument from amicus, that Judge Cannon entertained.

Justice Thomas wrote, “I write separately to highlight another way in which this prosecution may violate our constitutional structure. In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been ‘established by Law,’ as the Constitution requires.”

Justice Thomas has conveniently provided Judge Cannon with some additional support for Trump’s argument. Justice Thomas is only one of nine and none of his brethren and sistren signed onto his opinion here, so this is not the majority’s view of the law. But it seems far too coincidental for the Justice to have raised this issue, which has risen to prominence in the Florida case but played little if any role in the matter before the Supreme Court, unless he meant it as a flag to Judge Cannon.

-Joyce Vance

 

FDA approves Eli Lilly Alzheimer’s drug after months of delay

 

The Food and Drug Administration granted approval Tuesday to a closely watched Alzheimer’s drug, concluding that the benefits of modestly slowing the progression of the devastating disease outweigh its risks, drugmaker Eli Lilly announced.

The agency, in a surprise move in March, had delayed approval of the drug to further scrutinize its safety and effectiveness. Last month, a panel of independent experts unanimously endorsed the drug, setting the stage for the FDA’s sign-off.

Eli Lilly’s drug — Kisunla, the brand name for donanemab — is one of the few treatments developed for Alzheimer’s that modifies the underlying disease and will join just one other drug, Leqembi, on the commercial market. Kisunla — which was approved for treatment of early symptomatic Alzheimer’s disease — doesn’t halt the disease, but it has been shown to slow cognitive and functional decline.

“I think it’s likely to be the highlight of the year for us,” said Daniel Skovronsky, Eli Lilly’s chief scientific officer, noting that there are “few diseases that are as feared with as few treatment options” as Alzheimer’s. He said Kisunla will be available to patients in the coming weeks. The debates over such drugs have been particularly fraught because there is no cure for the affliction affecting more than 6 million Americans. 

The total cost of Kisunla will vary by patient depending on when they complete the treatment. That’s because once a scan shows a patient has minimal levels of amyloid, they can discontinue the treatment.

The estimated cost for a six-month course of the therapy is $12,522. A full year of treatment is protected to cost $32,000, according to the drugmaker. However, many people probably will not pay the full list price in part since Medicare is expected to cover the treatment for certain patients.

For some, the price could be higher than Leqembi’s estimated cost of $26,500 per year, although that treatment does not stop after the amyloid clears. Kisunla is the third amyloid-targeting drug to win the FDA’s blessing since 2021, following two treatments — Aduhelm and Leqembi — jointly developed by drugmakers Eisai and Biogen.

The approval of Aduhelm deeply divided the medical community, as critics argued that there was not enough evidence to show that the drug worked. The drugmakers stopped marketing Aduhelm after it fizzled commercially. But Leqembi received a warmer reception because later-stage data showed the treatment slowed cognitive and functional decline by 27 percent over 18 months, while Aduhelm had conflicting data.

Still, like the anti-amyloid drugs that came before it, donanemab has not been free of controversy. Three patients who received the drug in a clinical trial died of a complication from the drug. The condition, called ARIA, can cause the brain to swell or bleed. No such deaths occurred in the placebo group.

Critics have also said that donanemab’s benefits, while statistically significant, are modest. Members of the advisory committee cautioned that the risks and benefits could vary depending on patients’ genetics and the stage of their disease.

In briefing documents last month, the FDA had signaled that it was not overly alarmed by the drug’s safety profile, writing that the findings “are generally consistent” with the class of drugs that aim to reduce or eliminate amyloid plaques.

Though far from a cure, the recent Alzheimer’s drugs have kindled excitement among some researchers and advocates because of the potential to modify the course of the disease — effectively buying more time for those who suffer from it.

“Having multiple treatment options is the kind of advancement we’ve all been waiting for — all of us who have been touched, even blindsided, by this difficult and devastating disease,” Joanne Pike, head of the Alzheimer’s Association, said in a statement.

The drug is administered by infusion once a month. A key feature of Eli Lilly’s approach is that treatment with the drug could be discontinued once a patient’s amyloid levels are reduced to a certain level. That could reduce the burden on patients, but it remains unclear how testing for amyloid should be conducted.

The approval isn’t likely to give a meaningful boost to Lilly’s profits in the near term.The Indianapolis-based firm has a stock-market value of nearly $820 billion — the eighth-highest among publicly traded U.S. companies, and the most of any pharmaceutical firm, according to S&P Global Market Intelligence. The company’s rising stock price has largely been driven by the runaway success of its diabetes and weight-loss drugs, Mounjaro and Zepbound, respectively.

Still, the approval marks a significant success for Lilly and could buoy the prospects of other amyloid-targeting drugs, according to Wall Street analysts.

-The Washington Post

by Rachel Roubein

Rachel Roubein is a national health-care reporter for The Washington Post and author of The Health 202 newsletter, a daily morning tipsheet focused on health policy and politics. Twitter

by Daniel Gilbert

Daniel Gilbert joined The Washington Post in 2022 and writes about the business of medicine. He previously spent seven years as an investigative reporter for the Seattle Times, and before that covered business and energy for the Wall Street Journal. Twitter

 

 

Immune from Prosecution?

Ankush Khardori is a senior writer for POLITICO Magazine and a former federal prosecutor at the Department of Justice, where he specialized in financial fraud and white-collar crime. He has also worked in the private sector on complex commercial litigation and white-collar corporate defense. His column, Rules of Law, offers an unvarnished look at national legal affairs and the political dimensions of the law at a moment when the two are inextricably linked.

 
The Supreme Court’s decision on Donald Trump’s claim to be immune from prosecution may go down as one of the most brazenly political decisions in the history of the Supreme Court.
 
The opinion will have far-reaching consequences for the presidency, but the immediate effect will be to exponentially shrink the odds of a trial before November on Trump’s effort to remain in power after he lost the 2020 election. Indeed, the opinion might come to be known as Bush v. Gore 2.0 — a stunning intervention that could plausibly swing the presidential election to Trump. 

Still, the decision does leave some room for Justice Department prosecutors to maneuver, and for U.S. District Judge Tanya Chutkan, who is presiding over the case, to move forward before November. Both prosecutors and the judge should do everything within their power to do so — notwithstanding the Republican appointees’ evident desire to make that as difficult as possible.

The ruling is undeniably a major win for Trump, and has already infuriated many in the legal world, though it was no surprise where this was headed. The six GOP appointees who make up the conservative supermajority held — for the first time in U.S. history — that a president has “a presumptive immunity from criminal prosecution” for any actions related to his official responsibility.

To rebut that presumption, the government must show that criminalizing such an act would create no “dangers of intrusion on the authority and functions of the Executive Branch” — a decidedly vague but potentially very narrow exception to this newly created rule.

What should they do?

 
On a more practical level for the case at hand, the court held that Trump cannot be prosecuted based on his efforts to weaponize the Justice Department to pursue his false claims of voter fraud because he is “absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.” Trump is also “at least presumptively immune” for his alleged efforts to strong-arm then-Vice President Mike Pence into throwing the election to Trump at the electoral certification on Jan. 6, 2021.

 
The court remanded the case to Chutkan to determine whether the other allegations in the indictment deserve immunity from prosecution based on the nebulous guidance issued by the court.

The decision is a mess for prosecutors and the judge. Perhaps by design, it does not provide a clear roadmap for how they should proceed, which in turn means that there could be further disputes about how to interpret and implement the ruling.
 
Special counsel Jack Smith and his colleagues at the Justice Department have been put in a terribly difficult position, but they should advance the case as aggressively as possible, even if that means that it cannot be fully resolved by Election Day.
 

For one thing, they appear to have no choice in light of the majority’s ruling but to drop the allegations concerning Trump’s effort to use the Justice Department for his political ends, as shocking as that is by itself.

As for the rest of their allegations — including Trump’s effort to pressure Pence, to strong-arm state officials like Georgia Secretary of State Brad Raffensperger and to lie to pretty much anyone within earshot about the election — they should try to present the district court with evidence that criminalizing the particular conduct at issue would not intrude on the authority and functions of the executive branch, properly understood. 

That may require them to quickly amass more scholarship on the president’s duties in these contexts and, perhaps, to gather testimony from former government officials about the president’s responsibilities — or lack thereof — in these areas as a historical matter.
Chutkan has no choice but to take the court’s decision seriously, of course, even if it “will have disastrous consequences for the Presidency and for our democracy,” in the words of Justice Sonia Sotomayor’s dissent. I do not envy her, but she has an extraordinary responsibility on her hands.
 
One way to go forward would be for Chutkan to solicit briefs as quickly as possible on the parties’ position on the status of the indictment in the wake of the court’s ruling. Trump will continue to argue that it should all be dismissed or held in abeyance for some reason or another, but Smith and his team can present their best case for continuing the prosecution after the Supreme Court’s ruling.

If for some reason there are evidentiary questions that need to be resolved, those hearings should happen as quickly as possible, and the government should present as much evidence as is reasonably possible — including evidence concerning the conduct on Trump’s part that remains at issue in the prosecution, and including evidence that has not yet become public.
 
Prosecutors usually do not like to have trial witnesses testify in pretrial proceedings — among other things, because they can potentially be impeached at trial with any inconsistent statements — but this is the rare situation where that preference should be ignored. If there are hearings of any sort before November where it would be appropriate, prosecutors should consider calling people like Raffensperger and even Pence.
 
Chutkan’s overriding objective should be to move this case as expeditiously as possible before November, even if that means trying to resolve all of these questions and perhaps even scheduling a trial that may not end before Election Day.
 
The law, the public and common sense are all on her side. Chutkan has previously noted that the public has a strong interest in a speedy trial, and as I have noted before, a federal statute requires judges to set trial dates that account for “the best interest of the public.”
 
According to polls that POLITICO Magazine has commissioned over the last year, the public has had strong views on all of this.
Play Video
A large majority of Americans — about 60 percent of them, including two-thirds of independents — have repeatedly told pollsters that Trump should stand trial in this case before November. Presumably they would like to know whether they are being asked to reelect a man who committed an anti-democratic criminal scheme to retain power.
 
Earlier this year, we asked whether Americans trusted the Supreme Court to issue a fair and nonpartisan ruling on Trump’s immunity claim, and less than a quarter of them expressed confidence in the court. The skeptics were right.
 
In a more recent poll that we conducted just weeks ago, Americans identified the Supreme Court as the least trustworthy group of actors in the criminal justice system. After this decision, can you blame them?

The Republican appointees’ decision is only going to further bolster the notion that they are committed to partisanship in the most important and politically consequential cases that come before them.

They claim to be textualists, but there is no textual support for their ruling in the Constitution. They claim to be originalists, but there is no meaningful historical support for their decision. They claim to reject legal reasoning guided by structural inferences from the text of the Constitution and practical considerations, but their ruling is a collection of contrived — and wildly unconvincing — arguments that proceed on precisely those fronts. The standard that they created has no basis in constitutional text, history or logic.
 
The composition of the Republican-appointed majority that issued this ruling is an indictment of its own. Three of the justices (John Roberts, Brett Kavanaugh and Amy Coney Barrett) made their careers working on Bush v. Gore — the shameful predecessor in spirit to today’s ruling. Three of them (Neil Gorsuch, and Kavanaugh and Barrett) were appointed by Trump — the literal defendant in this case, the most important criminal prosecution in the country’s history. Two of them (Clarence Thomas and Samuel Alito) should have recused themselves amid scandals that have further undermined the institution’s credibility with the public.
 
Those angry about today’s ruling should train their outrage on the Republican appointees on the court, but they should not stop there.

-Politico

We should follow the lessons of British History:

 

Stampede at religious gathering in India leaves at least 77 people dead

 

New Delhi — At least 77 people were killed in a stampede at a religious gathering in central India's Uttar Pradesh state Tuesday, authorities said. Multiple Indian news reports said the death toll could be over 100, with most of the victims reportedly women, as authorities raced to collate the number of casualties at different hospitals in the region.

The stampede occurred during a "satsang," a prayer meeting hosted by a Hindu guru, in the village of Rati Bhanpur in the state's Hathras area. Thousands of the guru's devotees showed up to listen to his address, crowding under tents to avoid the harsh sun, before there was a panic and people started running.

Hathras District Magistrate Ashish Kumar said the local community health center had confirmed between 50 and 60 deaths among residents of the district alone. Officials in the neighboring Etah district confirmed the deaths of an additional 27 people... 

Stampede at religious gathering in India leaves at least 77 people dead - CBS News

Dia de los Muertos by Glen Brown

Chalma, Mexico – At least 41 worshippers
were suffocated or crushed to death  
when a tightly packed crowd began pushing
and shoving at a church famed for a religious icon
believed to have miraculous powers.
Thirteen of the victims were children.
                                                --from a news story
 
They came from Guadalupe and Guasave
and from villages in the south
with prayer on their tongues
and dead Jesus around their necks;
across nameless plains and mountains
in borrowed automobiles full of parcels
of hope and faith, their lives pawned
for one more pilgrimage.
 
Little children in their Sunday suits
and starched, white cotton dresses;
young, barefooted women
in embroidered bodices and lacy headdresses;
their mustachioed men in huaraches and doeskin;
and the old: tortilla-breasted and stern-faced
in dark shawls, fingering beads, pressed together.
Like a pile of sapodilla seeds,
they gathered at the sanctuary
with garlands of marigolds and chrysanthemum,
hoping for a cure.
 
There was a loud perfume of bougainvillea
rising among the festoons,
the Virgin enticing them to come closer,
and then an avalanche of bodies –
the terrible stomping
and crushing of skulls and bones,
two-and-a-half tons of trust
beneath the shrine, one afternoon
under the hemorrhaging, Mexican sun,
the red sky burning in their eyes.
 

(1990)

Six members of the U.S. Supreme Court "turned Trump or any future fascist president into our first American king or führer"

 

They did it. The Supreme Court handed a massive victory to Donald Trump in this so-called “immunity” case, and it will probably take a year or more before there’s even a chance he’ll be held to trial for trying to overthrow the 2020 election and, thus, the government of the United States.

As feared, the six Republicans on the Court essentially threw Trump’s sedition case back to the lower court (with caveats) where there will be numerous decisions to make — which are all further appealable, resetting the case so Trump can drag things out for another year or more — about whether the crimes he’s committed are “official” or “private/personal” acts.

But that’s not the worst of it. They also turned Trump or any future fascist president into our first American king or führer.

And, of course, no matter what little fig leaves exist in this decision, if he’s elected this fall, he’ll appoint a corrupt attorney general, who’ll make Trump’s attempts to overturn the 2020 election all go away immediately.

Chief Justice Roberts went so far as to say in this corrupt decision that Trump’s speech exhorting people to attack the Capitol and try to hang Mike Pence, and his failure to bring in the National Guard or ask his rabid followers to back off, are part of his “official responsibilities.”

Speaking to Trump’s calling his rioters to overthrow the election, Chief Justice Roberts bizarrely writes that:

“[M]ost of a president’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities.”

Justice Sotomayor is having none of it. Her dissent summarizes the situation elegantly:

“Today’s decision to grant former presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.

“Relying on little more than its own misguided wisdom about the need for ‘bold and unhesitating action’ by the President, the Court gives former President Trump all the immunity he asked for and more. Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent.”

She adds:

“The Court now confronts a question it has never had to answer in the Nation’s history: Whether a former President enjoys immunity from federal criminal prosecution. The majority thinks he should, and so it invents an a-textual, ahistorical, and unjustifiable immunity that puts the President above the law. The majority makes three moves that, in effect, completely insulate Presidents from criminal liability.”

The six Republicans on this Court have essentially declared that they and Trump are so far above the law that the entire concept this nation was founded on — that “no person is above the law” — is null and void.

All a future president must do if they want to commit a crime, as Justice Jackson’s dissent demonstrates, is to claim that no matter what they did, it’s merely an “official act.” Including, specifically, directing the Attorney General to commit crimes himself.

This is the sort of decision you’d get from a court in Putin’s Russia.

As Justice Sotomayor’s dissent lays out clearly:

“The main takeaway of today’s decision is that all of a President’s official acts, defined without regard to motive or intent, are entitled to immunity that is ‘at least . . . presumptive,’ and quite possibly ‘absolute.’ Whenever the President wields the enormous power of his office, the majority says, the criminal law (at least presumptively) cannot touch him.

“This official-acts immunity has ‘no firm grounding in constitutional text, history, or precedent.’ Indeed, those ‘standard grounds for constitutional decision making,’ all point in the opposite direction. No matter how you look at it, the majority’s official-acts immunity is utterly indefensible.”

She adds, correctly:

“The Constitution’s text contains no provision for immunity from criminal prosecution for former Presidents.”

Justice Ketanji Brown Jackson makes it even more clear, in the bluntest of language, that this Court — acting like kings and queens themselves — have turned the former president into their peer — a king — with little to no accountability to the rule of law.

She wrote in her dissent:

“To fully appreciate the profound change the majority has wrought, one must first acknowledge what it means to have immunity from criminal prosecution. Put simply, immunity is ‘exemption’ from the duties and liabilities imposed by law.

“In its purest form, the concept of immunity boils down to a maxim—’[t]he King can do no wrong’—a notion that was firmly ‘rejected at the birth of [our] Republic.’ To say that someone is immune from criminal prosecution is to say that, like a King, he ‘is not under the coercive power of the law,’ which ‘will not suppose him capable of committing a folly, much less a crime.’

“Thus, being immune is not like having a defense under the law. Rather, it means that the law does not apply to the immunized person in the first place. Conferring immunity therefore ‘create[s] a privileged class free from liability for wrongs inflicted or injuries threatened.’”

Unless Congress acts quickly to overturn this obscene 6-3 decision — which won’t happen so long as Republicans control the House — democracy in America has been wounded, perhaps fatally, and the president has been made into a dictator, should he or she choose to behave that way.

When we have a president (Biden) who respects the fundamental law, history, and traditions of America, we’ll be safe — for now. On the other hand, if Trump or any other fascist Republican becomes president, he can pretty much do anything he wants.

The imperial presidency is now officially here, not just rhetorically but in actuality. The six Republicans on the Supreme Court today did massive, perhaps irreparable, violence to our republic. We’re in huge trouble, this Court is out of control, and the Senate needs at act (Senator Dick Durbin!!!).

If Trump is elected, these six Republicans just gave him near-Putin-like powers to end our democratic republican form of government, as Justice Gorsuch said, “for the ages.”

-Thom Hartmann

 

"Anyone who sees the world through such a lens is on the wrong side of history" -Heather Cox Richardson

 

In addition to his comments about Russia in Ukraine, Trump said something else in Thursday’s CNN presentation that should be called out for its embrace of one of the darkest moments in U.S. history. 

In response to a question about what the presidential candidates would say to a Black voter disappointed with racial progress in the United States, President Joe Biden pointed out that, while there was still far to go, more Black businesses were started under his administration than at any other time in U.S. history, that black unemployment is at a historic low, and that the administration has relieved student debt, invested in historically Black colleges and universities, and is working to provide for childcare costs, all issues that affect Black Americans. 

In contrast, Trump said: “As sure as you’re sitting there, the fact is that his big kill on the Black people is the millions of people that he’s allowed to come in through the border. They're taking Black jobs now and it could be 18. It could be 19 and even 20 million people. They’re taking Black jobs and they’re taking Hispanic jobs, and you haven’t seen it yet, but you’re going to see something that’s going to be the worst in our history.” 

Trump was obviously falling back on the point he had prepared to rely on in this election: that immigration is destroying our country. He exaggerated the numbers of incoming migrants and warned that there is worse to come.

But what jumped out is his phrase: “They’re taking Black jobs and they’re taking Hispanic jobs.” 

In U.S. history it has been commonplace for political leaders to try to garner power by warning their voters that some minority group is coming for their jobs. In the 1840s, Know-Nothings in Boston warned native-born voters about Irish immigrants; in 1862 and 1864, Democrats tried to whip up support by warning Irish immigrants that after Republicans fought to end enslavement, Black Americans would move north and take their jobs.

In the 1870s, Californian Denis Kearney of the Workingman’s Party drew voters to his standard by warning that Chinese immigrants were taking their jobs and insisted: “The Chinese Must Go!” And those were just the early days.

But while they are related, there is a key difference between these racist appeals and the racism that Trump exhibited on Thursday. Politicians have often tried to get votes by warning that outsiders would draw from a pool of jobs that potential voters wanted themselves. Trump’s comments the other night drew on that racism but reached back much further to the idea that there are certain jobs that are “Black” or “Hispanic.”

This is not a new idea in the United States. 

“In all social systems there must be a class to do the menial duties, to perform the drudgery of life,” South Carolina senator James Henry Hammond told his colleagues in 1858. “That is, a class requiring but a low order of intellect and but little skill. Its requisites are vigor, docility, fidelity. Such a class you must have, or you would not have that other class which leads progress, civilization, and refinement.

It constitutes the very mud-sill of society and of political government; and you might as well attempt to build a house in the air, as to build either the one or the other, except on this mud-sill.” 

Capital produced by the labor of mudsills would concentrate in the hands of the upper class, who would use it efficiently and intelligently to develop society. Their guidance elevated those weak-minded but strong-muscled people in the mudsill class, who were “happy, content, unaspiring, and utterly incapable, from intellectual weakness, ever to give us any trouble by their aspirations.”

Southern leaders were smart enough to have designated a different race as their society’s mudsills, Hammond said, but in the North the “whole hireling class of manual laborers and ‘operatives,’ as you call them, are essentially slaves.”

This created a political problem for northerners, for the majority of the population made up that lower class. “If they knew the tremendous secret, that the ballot-box is stronger than ‘an army with banners,’ and could combine, where would you be?” Hammond asked his colleagues who insisted that all people were created equal. “Your society would be reconstructed, your government overthrown, your property divided.” 

The only true way to look at the world was to understand that some people were better than others and had the right and maybe the duty, to rule. “I repudiate, as ridiculously absurd, that much lauded but nowhere accredited dogma of Mr. Jefferson, that ‘all men are born equal’” Hammond wrote, and it was on this theory that some people are better than others that southern enslavers based their proposed new nation. 

“Our new government is founded…upon the great truth that the negro is not equal to the white man; that slavery subordination to the superior race is his natural and normal condition. This, our new government, is the first, in the history of the world, based upon this great physical, philosophical and moral truth,” Alexander Stephens, vice president of the Confederacy, told supporters. 

Not everyone agreed. For his part, rising politician Abraham Lincoln stood on the Declaration of Independence. Months after Hammond’s speech, Lincoln addressed German immigrants in Chicago. Arguments that some races are “inferior,” he said, would “rub out the sentiment of liberty in the country, and…transform this Government into a government of some other form.”

The idea that it is beneficial for some people to be dominated by others, he said, is the argument “that kings have made for enslaving the people in all ages of the world…. Turn in whatever way you will—whether it come from the mouth of a King, an excuse for enslaving the people of his country, or from the mouth of men of one race as a reason for enslaving the men of another race, it is all the same old serpent.” 

According to the mudsill theory, he said the following year, “a blind horse upon a treadmill, is a perfect illustration of what a laborer should be—all the better for being blind, that he could not tread out of place, or kick understandingly. According to that theory, the education of laborers, is not only useless, but pernicious, and dangerous.” He disagreed. “[T]here is not, of necessity, any such thing as the free hired laborer being fixed to that condition for life.”

He went on to tie the mudsill theory to the larger principles of the United States. “I should like to know if taking this old Declaration of Independence, which declares that all men are equal upon principle and making exceptions to it, where will it stop,” he said. “If that declaration is not the truth, let us get the Statute book, in which we find it and tear it out!” To cries of “No, no,” he concluded to cheers: “Let us stick to it then. Let us stand firmly by it.” 

One hundred and sixty-six years later, Black and Hispanic social media users have answered Trump’s statement about “Black jobs” and “Hispanic jobs” with photos of themselves in highly skilled professional positions. But while they did so with good humor, they were illustrating for the modern world the principle Lincoln articulated: in the United States there should be no such thing as “Black jobs” or “Hispanic jobs.” 

Such a construction directly contradicts the principles of the Declaration of Independence and ignores the victory of the United States in the Civil War. Anyone who sees the world through such a lens is on the wrong side of history. 

—Heather Cox Richardson

Notes:

https://www.cnn.com/2024/06/27/politics/read-biden-trump-debate-rush-transcript/index.html