Governor Greg Abbott claims to be Catholic but obsessed with defiance about federal immigration law

Column: Texas’ defiance of federal rule echoes Southern segregationists ...echo opinion published in the Los Angeles Times:

Inept Texas Gov. Greg Abbott’s years of defiance of federal rule has escalated to a standoff at the border with lives on the line. 

A Justice Department filing with the Supreme Court underscored the legal bankruptcy of Texas’ position as well as the high stakes of its intransigence.

Under his “Operation Lone Star” initiative, Abbott has unabashedly declared that the state will undertake wide-ranging efforts to prevent immigrants from crossing into Texas from Mexico and send them back if they do enter. He insists that “Texas has the sovereign authority to defend our borders.”

One small problem: It doesn’t. The Constitution unambiguously assigns regulation of immigration to the federal government. Federal law preempts state laws that purport to exercise immigration authority, and there is no serious argument to the contrary.

Texas immigrants helped through barbed wire

Texas’ attempts to suggest otherwise are tissue-thin. Its leading argument appears to be that the influx of migrants from Mexico triggers the Constitution’s invasion clause, which requires the federal government to protect the states against invasion, supposedly entitling the Lone Star State to take military action notwithstanding federal law.

Texas’ resistance to federal law has taken many forms and given rise to a series of lawsuits by the Biden administration. Texas has placed large buoys in the middle of the Rio Grande to impede crossing. It has fenced a large area along the river and prevented Border Patrol agents from entering critical areas. And it has enacted a law that purports to make illegal entry a state crime and give Texas power to deport migrants as of March.

But Texas does have one thing going for its broader border campaign: the U.S. Court of Appeals for the 5th Circuit, which is by most accounts the most maverick of the 12 federal circuit courts.

Governor Greg Abbott fights migrants not welcome in Texas

The episode that prompted the Supreme Court filing arises from a Texas lawsuit that significantly upped the ante. In fact, the suit charges that the Border Patrol’s removal of concertina wire that Texas erected amounted to an “ongoing, unlawful practice which undermines [Texas’] border security efforts.”

The lawsuit borders on silliness. If the Constitution’s supremacy clause means anything, it’s that state law can’t be used to defeat a legitimate federal law enforcement function.

The U.S. District Court denied Texas’ motion for a preliminary injunction because, among other reasons, the U.S. has sovereign immunity against such a state suit. But the 5th Circuit entered an immediate “administrative stay” and then an injunction pending appeal that barred the U.S. government from interfering with the fencing except for medical emergencies. In a breathtakingly cursory statement, the court held that Texas wasn’t regulating the Border Patrol and that sovereign immunity therefore did not apply.

The U.S. government filed an emergency motion to vacate the injunction with the Supreme Court this month, pointing out that the 5th Circuit was “manifestly wrong” under the supremacy clause and sovereign immunity principles. It added that the court’s rationale would allow states to “seek to force the federal government to conform the implementation of federal immigration law to varying state-law regimes.”

This week’s filing was the Justice Department’s second supplemental memorandum to its emergency motion, an extreme rarity. It was prompted by an episode that tragically substantiated the federal government’s concerns about Texas’ interference: Three migrants drowned trying to cross the border Friday, and Texas National Guard troops refused to give the Border Patrol access to the scene. (Texas disputes aspects of the federal account but not that the Border Patrol was blocked from entering the area.)

The essential dynamic is clear: Abbott and Texas are determined to continue to defy federal law enforcement regardless of the Constitution and the consequences. Indeed, there is a Trumpian swagger to Abbott’s insistence on supplanting federal law enforcement because it supposedly isn’t getting the job done on his terms.

We have seen this kind of state-federal law enforcement standoff in the South before, most notably by segregationist governors such as Orval Faubus, who used the Arkansas National Guard to block Black students from integrating Little Rock Central High School in 1957. It took a concerted effort from the federal government and the federal courts to beat back that lawlessness.

Abbott’s refusal to recognize the supremacy of federal law is as bold and rank as we have seen. The key difference here is the lack of resolve to apply the Constitution among the 5th Circuit’s judges, about a third of whom are Trump appointees. Despite its conservatism, the Supreme Court has taken an increasing number of cases from the circuit — it has at least six on its current docket — and reversed it about three-quarters of the time. Given that the other most conservative appellate court is reversed about half as often, that suggests the 5th Circuit is not just far right but downright wacky.

The Texas dispute shows how former guy Trump’s depredations (plundering) have outlasted his (sick❗) rule. 

That’s because he managed to seed the courts with a cohort of judges who have little allegiance to the federal judiciary’s tradition of reinforcing the supremacy of federal law. Their corrosive impact will linger for a generation or more.

Harry Litman is the senior legal affairs columnist for the Opinion page, is a former U.S. attorney and deputy assistant attorney general.

Donald Trump has a criminal infection of infantile personality disorder

 September 1, 2022 Echo opinion letter published in The Lost Angeles Times.

To the editor: Columnist Harry Litman writes that the former guy  Trump’s essential sin is “equating his personal interest with the national interest.” This is wrong. The only interests Trump thinks about are his own. (“The Mar-a-Lago search looks more like it could provide a way to hold Trump accountable,” Opinion, Aug. 26, 2022)

Trump is clearly a crazy victim of "infantile personality disorder", IMO.

"At first it seemed likely that the Justice Department might only be focused on getting the government’s material back, out of Mar-A-Lago and back to the National Archives, where it belonged. But now, we know, the agency has been hot on the trail of a consequential investigation of the crimes listed in the affidavit, for months," wrote Harry Litman.

From its inception, as a mission to retrieve documents endangering national security, the search of Donald Trump’s Mar-a-Lago compound has developed into the sharpest of the several daggers at the former president’s throat.

That’s not simply because the evidence linking Trump to the potential crimes specified in the warrant — removal of public documents, violations of the Espionage Act and obstruction of justice — grows ever stronger, but also because his handling of sensitive government property is a stunning example of the essential Trumpian sin: Equating his personal interest with the national interest.

"Stolen secret documents were being kept illicitly in Mar-A-Lago rooms and closets. And all of this was unfolding in a venue described by former intelligence officials as a priority target for foreign spies", reported in The Guardian by Julian Borger. 

It’s always been clear that the federal government can’t — won’t — bring just any charges against Donald Trump. The circumstances have to justify what will inevitably be a political and constitutional firestorm. The evidence must be ironclad and the wrongdoing has to represent grave offenses against the republic.

Any parent will recognize this in Trump’s statement, “It’s not theirs, it’s mine.” This is not a legal argument or a media-savvy diversion. He need not have planned to sell the documents he kept at Mar-a-Lago after his presidency or use them as bargaining chips. He just saw things he wanted and took them. And he sees nothing wrong with that.

With this in mind, Trump’s irresponsible and outrageous behavior is no longer surprising. In fact, he’s predictable. Just ask yourself, “What would a 2-year-old do?”

Joel Karafin, Los Angeles

Security concerns plague Trump’s Mar-a-Lago disregard for government documents, because thousands of stolen and sensitive documents laid around in the not so private club

Maine Writer post script:  In my opinion, what Trump did in violation of the law by stealing federal documents is yet another example of evidence to show how he was not qualified to ever hold a political office. Nevertheless, his cult followers are afraid to challenge him. With all due respect to Joel Karafin in Los Angeles, it's too simplistic to call the Trumposity's behavior "childish", like what a "2 year old child would do".  In fact, Donald Trump is a criminal, but until such time as he is convicted, I am confident to make the assessment that he is a victim of an "infantile personality disorder". 

Cult leader Donald Trump and Republican enablers

Opinion echo published in the The Detroit News by Harry Litman: Trump's impeachment defense is threadbare and irrelevant. But coward Republicans are supporting him.

Donald Trump’s hastily assembled impeachment legal team has submitted written arguments in his defense that are threadbare, amateurish and replete with irrelevancies.

Nonetheless, as it stands Trump figures to walk out of the Senate a winner.  (Maine Writer- I disagree with this particular statement by Litman.  Trump is not a winner, but he a cult leader that Republicans are somehow supporting like it's their political addiction.)

On Tuesday, the House impeachment managers filed a persuasive and on-point 80-page brief. It spends 35 pages on a methodical account of facts and evidence that draws a direct — and hard to refute — connection between Trump’s conduct starting in late December and the violent storming of the Capitol that stunned the nation on January 6.

At the same time, the House managers eloquently invoke the broader themes of constitutional principle and historical purpose that justify the House’s impeachment resolution, and show that the process Congress is now engaged in is deeply consequential to the republic.

Trump’s lawyers, on the other hand, seem to have gotten lost on their way to offering a hasty initial defense for a minor offense in a state trial court, “answering” the House allegations in rote fashion: Their client denies all wrongdoing. The brief‘s response to the contents of the article of impeachment against Trump is mostly “the 45th president denies.”

The shortcomings of the response may reflect delicate negotiations with a truculent client, one who sacked a different legal team over the weekend. The departed attorneys, according to unnamed sources, refused to commit professional suicide by affirming the Trumpian lie that the 2020, presidential election was stolen.

In fact, the new Trump team, not surprisingly, isn’t pursuing the Big Lie either. It would not only ensnare them in falsehoods (when attorneys lie professionally they can lose their licenses), it would add to the contention that Trump supported, even encouraged, the insurrection and that it was justified. In other words, it would hurt his case, not help it.

Instead, the former president’s defense rests on a blizzard of nonsense. The brief asserts, for example, that because Trump is out of office, the House’s article of impeachment is “moot and a non-justiciable question” — a court can’t decide it. In fact, most questions in the impeachment realm are “non-justiciable” because the Constitution commits them not to the courts but to the political system, the Senate, for a final decision. What the Senate as a body says about when an impeachment trial can take place, in other words, goes.

The brief further argues that Trump’s incendiary rhetoric on Jan. 6, which the House cites to justify “incitement to insurrection,” was “protected speech,” and that the impeachment violates Trump’s right to “free speech and thought.” That’s another swing and a miss.

The First Amendment has no applicability to an impeachment charge. Many, if not most, impeachable offenses by their nature are “speech.” For example, President Richard Nixon’s command to the FBI to stand down in investigating the Watergate affair. The House can surely pursue impeachment if a president’s speech abrogates the president’s duty to uphold and defend the Constitution.

It only gets worse from there.

Trump’s lawyers say the House deprived their client of “due process” by “rushing to issue the Article of Impeachment,” and that a single article of impeachment can’t be valid because it covers multiple actions. Both concepts, again, are borrowed from criminal law; they have no relevance to impeachment. And even if we read the “due process” complaint metaphorically, it’s obvious that Trump is being afforded ample notice and opportunity to defend himself.

The defense also tries to claim that the House impeachment resolution is a “bill of attainder,” a law passed specifically to target an individual for criminal prosecution. Bills of attainder are prohibited by the Constitution, but the brief is grasping at straws. Under its tortured reasoning, any impeachment would qualify as a bill of attainder.

That leaves one final defense. It, too, is errant, but it is likely to carry the day. In the Tuesday filing, it’s the bare assertion — with no argument from text, structure or history — that the Constitution itself does not permit the Senate to try an official whose term has expired.

But as I’ve said, along with a majority of constitutional scholars, it’s the Constitution that leaves it to the Senate to decide this issue. In at least two historical instances, senators have already allowed impeachment trials to go forward even after the defendant was “removed.” It did it again just days ago by rejecting Sen. Rand Paul’s point of order that sought to dismiss Trump’s second impeachment trial before it could begin.

That’s the right result under constitutional text, practice and history. The House managers’ brief adds to the point with a nice reference. Article 1, they wrote, gives the Senate “sole power to try all impeachments.” Trump was duly impeached by the House, ergo the Senate can try him.

Still, the vote count on Paul’s point of order showed that the “it’s too late” constitutional argument will probably attract sufficient support to prevent Trump’s conviction. A majority of Republican senators appear ready to ignore text and precedent — as well as the violence they witnessed and lived through — because blindness will give them a way to wriggle out of passing judgment on Trump’s behavior.

It is a shame, literally, that any Republican senator would shirk his or her duty to pass judgment on the merits of the case against Trump. As was true in the 45th president’s first impeachment, Senate Democrats are left to play to the court of history. There they will prevail.

Harry Litman is a former U.S. attorney and the host of the podcast "Talking Feds."

Maine Writer- In other words, cowardly and hypocritical Republicans are enabling cult Trumpziim. Trump is guilty but Republicans are blinded by cultism.