nullification – USA Gov Policy

The tweets by former Obama advisor Ben Rhodes musing on the death of Trump and GOP leaders, and similar extreme comments by others raise an important issue: Are the bonds which unite Americans weakening due to the strident attacks on the outcome of the presidential election?

It’s increasingly worrisome that much of the political chattering classes have become obsessed—there is no better word—with their hatred for both Trump and his supporters, those whom the Democrat presidential candidate in 2016 described as “deplorables.”

Their anger differs from the usual political disagreements that have characterized politics in the past. It is not a rejection of policy or actions—such as that which marked centrist and conservative dissent against Obama’s agenda. It is, instead, a cultural hatred of those that don’t subscribe to progressive orthodoxy. In its extremity, it is a rejection of the identity of those whom one disagrees with as fellow citizens of a free republic, merely because of differing views. The trend was crystalized when Hillary Clinton, when asked who she thought of as “the enemy,” responded, not Russia or China, or poverty or discrimination, but “Republicans.”

Labelling countrymen as “enemies” or “deplorables” opens the door to the justification of harsh repressive measures. This trend was becoming apparent during the Obama Administration, when the IRS was used to attack the Tea Party, and when Attorney General Loretta Lynch seriously considered criminally prosecuting those who merely disagreed with the President’s view on climate change.

In the past, even significant transfers of power from one ideology to the other were peaceful. Liberal Jimmy Carter’s replacement with conservative Ronald Reagan, and George W. Bush to Barack Obama being salient examples. Of course, there were disagreements and harshness, but nothing approaching what occurred after the 2016 election. The well-coordinated and financed violence that occurred in city streets, the calls to impeach Trump before he was even inaugurated, the commencement of a politically motivated investigation on the most specious and unsubstantiated grounds, and the creation of a false sense of crisis by a partisan media are unprecedented.

The images of Trump’s severed head made popular by comedian Kathy Griffen, and the shoot-up of a Republican sports outing by a left wing fanatic have carved out unwelcome and dire territory in the American political experience.
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The problem extends far beyond vapid Hollywood starlets and hyper-partisan politicos. The actions of oft-overturned Ninth Circuit judges seeking to seize the statutory powers of the presidency, the attempts by career federal bureaucrats to ignore the directives of elected officials, and perhaps most distressingly the very serious discussion of a California secession movement all point to a potential break in intra-national relations not seen since the assault on Fort Sumter.

In many ways, the intensified declarations by a number of city and state governments that they are “sanctuary cities” is similar to the nullification argument of southern states before the outbreak of the Civil War.

The 1832 South Carolina Ordinance of Nullification was issued in response to a federal tariff. The state government simply decided it had the right to ignore federal legislation, in an area of law the Constitution clearly provided to Washington. USHistory.org notes: “As far as South Carolina was concerned, there was no tariff. A line had been drawn. Jackson rightly regarded this … challenge as so serious that he asked Congress to enact legislation permitting him to use federal troops to enforce federal laws…If nullification had been successful, could secession have been far behind?”

The nation was able to pull back from the brink of confrontation in 1832. It did not escape a cataclysm in 1861.

When some states, cities and courts decide to ignore the Constitution, when many political partisans declare that “Trump is not my President,” and when biased media outlets vigorously push a fevered and inaccurate picture of a nation in turmoil, it would appear that America is in danger of moving closer to an ideological 1861 moment.

Quick Analysis

Judge Merchan continues to deny justice to Donald Trump

In August of 2024, we discussed the US Supreme Court’s decision in Trump v. United States. We described the three tiered system enunciated by Chief Justice Roberts to determine whether or not the actions taken by the President of the United States are entitled to immunity from criminal prosecution or not. The first tier are acts within the President’s constitutionally mandated authority which are subject to “absolute immunity.” The next are acts that may have “presumptive immunity,” and are subject to examination with evidence that rebuts the presumption of immunity. The third are acts which are unofficial, and which enjoy no immunity. In September, we also discussed the effect this decision should have on the New York County criminal case currently pending against President-elect Trump before Judge Juan Merchan. We cited to a CNN report, which described the evidence used against Donald Trump at the trial of that matter: “Trump’s lawyers pointed to testimony at trial – including from White House officials Hope Hicks and Madeleine Westerhout – they argued should not have come before the jury…'[a]ll of Hicks’s testimony concerning events in 2018, when she was serving as the White House Communications Director, concerned official acts based on [Presidential] authority for which President Trump is entitled to absolute immunity,’ Trump’s attorneys argued. ‘[the Supreme Court’s ruling] specifically forbids prosecutors from offering ‘testimony’ from a President’s ‘advisers’ for the purpose of ‘probing the official act.’” Sure enough, as Chief Justice Roberts stated in the Presidential Immunity decision, “[a]llowing prosecutors to ask or suggest that the jury probe official acts for which the President is immune would thus raise a unique risk that the jurors’ deliberations will be prejudiced by their views of the President’s policies and performance while in office. The prosaic tools on which the Government would have courts rely are an inadequate safeguard against the peculiar constitutional concerns implicated in the prosecution of a former President.” At the time, we stated that “Judge Merchan allowed testimony regarding Donald Trump’s official acts as President, acts which enjoy absolute immunity and which cannot be used against him, or even be entered into evidence in a criminal trial, a situation which could have been avoided had Judge Merchan delayed the trial until he’d received the guidance of the US Supreme Court.” Nonetheless, we predicted that Judge Merchan “will find a way to justify his actions once again, and let stand the unlawful conviction of former President Donald Trump.” You know how much we hate to say we were right…but…we were right. “This Court…finds that the evidence related to the [President-elect’s] claims relate entirely to unofficial conduct and thus, receive no immunity protections,” Judge Merchan wrote in his December 16, 2024 decision. “Further, even if this Court were to deem all of the contested evidence…as official conduct falling within the outer perimeter of Defendant’s Presidential authority, it would still find that the People’s use of these acts as evidence of the decidedly personal acts of falsifying business records poses no danger of intrusion on the authority and function of the Executive Branch, a conclusion amply supported by non-motive-related evidence.” In so ruling, the Court denied Donald Trump’s motion to dismiss his New York County conviction. Let us examine these findings, in light of the evidence admitted at the President-elect’s trial, and then compare that evidence to the acts granted absolute immunity by the US Supreme Court. In his decision, Judge Merchan discusses the testimony of Hope Hicks, who served as the Communications Director for the Trump White House. “Defendant argues that in her roles at the White House, any communications between Ms. Hicks and Defendant must receive absolute immunity…as Defendant’s ability to speak freely to Ms. Hicks was a core function of the Executive. According to Defendant, because Ms. Hicks wielded executive power on his behalf, authority that exists pursuant to Article II of the Constitution, any communications [President Trump] had with [Hicks] are subject to absolute immunity,” the Court wrote. Judge Merchan also noted that “[t]he People argue that the communications Defendant had with Ms. Hicks…constitute unofficial acts not entitled to any level of immunity.” In his inevitable agreement with the arguments presented by Manhattan DA Alvin Bragg’s office, Judge Merchan wrote “Defendant’s argument that any communication he had with Ms. Hicks is subject to absolute immunity by virtue of the position she held in the White House is mistaken…the President himself may speak in his unofficial capacity as a candidate or party leader, and certainly he can do so in his private capacity as well. Any argument that private conduct transforms into official conduct by communicating about the same to an individual with a particular title is without merit.” Thus, it is Judge Merchan’s position that the conversations Donald Trump had with his Communications Director are not entitled to immunity, even though those discussions were held at the White House, while Donald Trump was serving as President of the United States, merely because those discussions were not related to official Executive Branch activities. Sounds possibly reasonable – until you examine the Presidential Immunity decision more closely. In September, we wrote that “the statement made by Chief Justice Roberts in his majority opinion in the Presidential Immunity case [is significant]; ‘Presidents cannot be indicted based on conduct for which they are immune from prosecution…[t]estimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial.’” This statement by Chief Justice Roberts points to a blanket immunity for ANY discussions had between the President and his advisors, regardless of the nature of those communications. Further, we noted that the Supreme Court issued the following warning: “[t]he government…contends that a jury could ‘consider’ evidence concerning the President’s official acts ‘for limited and specified purposes,’ and that such evidence would ‘be admissible.’” In rejecting that argument, Chief Justice Roberts states “[t]hat proposal threatens to eviscerate the immunity we have recognized. It would permit a prosecutor to do indirectly what he cannot do directly – invite the jury to examine acts for which a President is immune from prosecution […]