The idea of Democrats fighting for their own side …

,,, when even Democrats who totally oppose doing that pretend to support it.

For instance, Obama’s Attorney General Eric Holder. The man who didn’t seriously investigate the various crimes committed by the Cheney-Bush Administration around the Iraq War and the War on Terror more generally, not even the blatantly criminal torture crimes. The man who didn’t prosecute most of the major financial executives for the illegal practices that brought on the financial crisis of 2008. Even John Ashcroft, the rightwing Christian nationalist who was the first Attorney General in the Shrub Bush government was more aggressive on pursuing corporate criminals than Eric Holder was.

It was the Obama Presidency and its look-forward-not-backward was their approach to crimes committed by elites. Maybe the most pitiful moment of the whole process was Obama’s explicit acknowledgment that the previous Administration had committed torture – but his administration wasn’t going to pursue legal action against the torturers. Responding to a question from the press in 2014 – over five years into his Presidency:

[E]ven before I came into office I was very clear that in the immediate aftermath of 9/11 we did some things that were wrong. We did a whole lot of things that were right, but we tortured some folks. We did some things that were contrary to our values. [Not to mention against the law!]

I understand why it happened. I think it’s important when we look back to recall how afraid people were after the Twin Towers fell and the Pentagon had been hit and the plane in Pennsylvania had fallen, and people did not know whether more attacks were imminent, and there was enormous pressure on our law enforcement and our national security teams to try to deal with this. And it’s important for us not to feel too sanctimonious in retrospect about the tough job that those folks had. And a lot of those folks were working hard under enormous pressure and are real patriots.

But having said all that, we did some things that were wrong. And that's what that report reflects. And that's the reason why, after I took office, one of the first things I did was to ban some of the extraordinary interrogation techniques that are the subject of that report.

And my hope is, is that this report reminds us once again that the character of our country has to be measured in part not by what we do when things are easy, but what we do when things are hard. And when we engaged in some of these enhanced interrogation techniques, techniques that I believe and I think any fair-minded person would believe were torture, we crossed a line. And that needs to be -- that needs to be understood and accepted. And we have to, as a country, take responsibility for that so that, hopefully, we don't do it again in the future. (1)

It actually would have been better if he had just lied and said they had looked into it and so no grounds on which they could pursue criminal prosecutions of the tortures and those who directed them to commit torture crimes.

Instead, he said, though not exactly in these words: I knew before I became President about the torture crimes. But prosecuting them would hold important elites accountable before the law and I have no intention of doing that. I especially have no intention of prosecuting the senior officials directing the program, because I want to continue to appeal to Republicans who hate my guts and always will. And Michelle and I want to shmooze around with George W. Bush now that he’s no longer President. As President and a constitutional scholar, I tell you: our elites are above the law.

Obama’s line, “it’s important for us not to feel too sanctimonious in retrospect about the tough job that those folks had,“ is a plea for people to be generous minded ... to torturers.

It should have been one hundred times for the Obama Presidency to uphold the rule of law on the torture crimes.

The one thing that Dick Cheney and George W. Bush couldn’t give themselves was a subsequent Democratic Administration that would validate their criminal behavior by giving them a free pass on prosecution, even for gruesome and sadistic torture crimes.

Barack Obama and Eric Holder gave them that. Their failure was a serious blow to the rule of law. Their failure was one major station on a long journey from Vietnam and Watergate and the Nixon pardon and Iran-Contra to the practical immunity the Biden Administration gave Donald Trump for the January 6 insurrection to the Trump dictatorship-under-construction.

And Eric Holder now declares … it’s time for Democrats to fight for their own side!

After months of inertia and disunity in response to Trump, Democrats are now finding their voice and taking a stand. ,,,

They have the backing of prominent party figures such as Eric Holder, a former attorney general under President Barack Obama. Holder, whose organisation has long campaigned to end gerrymandering, admitted this week that he has changed his position and now believes that Democrats should respond with their own redistricting.

Holder told the New York Times: “What’s driving Democrats is, I think, a legitimate response. I mean, it’s like the Germans have invaded France. Are you going to just say, “Well, we’re against war and we’re for the resolution of disputes in a peaceful way”? Sometimes you have to take up arms. And when confronted with this authoritarian, anti-democracy effort, we have to take up arms.” (2)

We shouldn’t take any of this seriously from Obama or from Eric Holder. But it’s some kind of good sign when a staunch supporter of elite impunity like Holder – who worked for a prestigious Wall Street law firm before he became Attorney General - feels like he needs to pretend he supports the rule of law.

The rule of law is important and Democrats need to uphold it. Rule of law is a critical part of democracy itself. You can’t have one without the other. And rule of law means that the President and everyone else is subject to the law. Getting there means that both Democrats and Republicans but especially Democrats should take enforcing the law against criminal elites very seriously and responsibly.

And that means not taking seriously politicians who claim to do so and nevertheless don’t gag on a line like, “it’s important for us not to feel too sanctimonious in retrospect about the tough job that those [torturers] had.”

Otherwise we wind up with masked thugs paid by the federal government literally kidnapping people who look like they might be Latino off the streets and shipping them to concentration camps in El Salvador or Florida.

This is not an argument against “strategic voting.” It’s an argument for the rule of law. Not rule by masked kidnappers and concentration camps.

Notes:

(1) Press Conference by the President. Obama White House Archives 08/01/2014. <https://obamawhitehouse.archives.gov/the-press-office/2014/08/01/press-conference-president> (Accessed: 2025-10-08).

(2) Smith, David (2025): ‘We are at war – bring it on’: Democrats ready to fight dirty to stop Trump. Guardian 08/09/2025. <https://www.theguardian.com/us-news/2025/aug/09/democrats-fight-back-republicans-trump> (Accessed: 2025-10-08).

A rule-of-law wish list for an incoming Harris Administration

The original text of the Constitution gives Congress the power to regulate the appellate jurisdiction of the federal courts, including the Supreme Court. On the optimistic assumption that Kamala win Tuesday’s election and Trump’s next coup attempt fails, it’s time that Congress start using that power, which when it excludes court jurisdiction over some area of law is known by the somewhat pejorative term, “jurisdiction stripping.”

[I]n the 1810 case Durousseau v. United States, Chief Justice John Marshall accepted the validity of legislation limiting the Court’s jurisdiction but suggested that, in the absence of such congressional action, the Court’s appellate jurisdiction would have been measured by the constitutional grant. However, later cases have generally taken the view that the Supreme Court possesses no appellate power in any case, unless conferred upon it by act of Congress. [my emphasis] (1)

Why is this obtuse legalese relevant to today’s politics? Because to protect basic rights, including voting rights and the right to abortion, Congress has to remove the power of judicial review from today’s rogue Supreme Court over federal legislation protecting those rights.

Congress has used their power to regulate Court jurisdiction, for instance in this Reconstruction case:

Congress has on occasion used its power to regulate Supreme Court jurisdiction to forestall a possible adverse decision from the Court. In Ex parte McCardle, the Court granted certiorari to review the denial of a petition for a writ of habeas corpus from a civilian convicted of acts obstructing Reconstruction. Anticipating that the Court might void, or at least undermine, congressional reconstruction of the Confederate States, Congress overrode the President’s veto to enact a provision repealing the statute that authorized the appeal. Although the Court had already heard argument in the case, it dismissed the action for want of jurisdiction. The Court stated, We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words. Since its decision in McCardle, the Supreme Court has upheld numerous legislative limits on its jurisdiction.

For liberals who just want to elect a Democratic President so “we can go back to brunch” and not worry about challenges to democracy and the rule of law or similarly bothersome issues, the very thought that Congress should restrict Supreme Court jurisdiction will be horrifying. Goodness me! If the Democrats do that to protect basic rights, then the Republicans might do it, too, to protect some bad legislation they want!!

But really, anyone who has paid attention to American politics for the last 20 years or so, even the last 10 years, should not need to wonder whether the Republicans will wait for a Democratic precedent to do something they want to do to protect their billionaire owners or their most rabid rightwing voters. They don’t. They don’t care and wouldn’t hesitate to use that power if they thought they needed to. From the Gingrich Revolution to the 2021 Capitol insurrection to the New Bund rally at Madison Square Garden this week, they care about what they can get away with. They’ll blame the Democrats for whatever they do. But they don’t need permission or precedents from Democrats to do it.

So here’s my wish list for immediate legislative action if the Democrats have majorities in both Houses. Five of which relate directly to defending liberal democracy, including the rule of law. And Harris should attempt them even if they don’t control the two Houses. All of them will require the Senate to either abolish the filibuster rule altogether (which can be done with 51 votes) or exempt these individual measures from the filibuster rule.

1. Federal law establishing the right to abortion care in all of the United States. Including a provision stripping jurisdiction from the federal courts from ruling on its Constitutionality.

2. Federal law restoring the provision of the Voting Rights Act overturned by the rogue Roberts Supreme Court, with legal requirements that legislatures in states who hold popular elections for President must respect the result in their selection of Presidential Electors., Including a provision stripping jurisdiction from the federal courts from ruling on its Constitutionality.

3. Federal law stating clearly that the President has no immunity to violate the law. Including a provision stripping jurisdiction from the federal courts from ruling on its Constitutionality.

4. Federal law declaring that for the purposes of regulations on campaign contributions, corporations cannot be considered persons, and establishing campaign contribution limits and strict reporting requirements. Including a provision stripping jurisdiction from the federal courts from ruling on its Constitutionality.

5. Strict, legally binding ethics regulations for the Supreme Court with substantial criminal penalties for violations. Including a provision stripping jurisdiction from the federal courts from ruling on its Constitutionality.

6. “Card check” legislation facilitating union organization. Including a provision stripping jurisdiction from the federal courts from ruling on its Constitutionality.

Codifying the abortion rights included in the now-defunct Roe v. Wade decision and card check legislation were campaign pledges of Barack Obama in 2008. His Administration never made a serious attempt to do either.

A renegade Supreme Court in the Dred Scott decision of 1857 effectively ended the possibility of ending or even containing slavery without a bloody civil war. The Supreme Court in the 1930s was blocking FDR’s New Deal legislation on frivolous grounds until Roosevelt made a serious effort to expand the Court. And entrenched reactionary judiciary that doesn’t respect legitimate laws or normal judicial procedures includes taking full account of relevant precedents can undermine the rule of law, just as a bad legislature or lawless Executive Branch can.

A Harris Administration will need to take seriously reigning in the rogue judiciary, especially including the Supreme Court.

And, yes, that will require back-to-brunch Democrats to get out of their previous comfort zone on the subject.

Rhode Island Sen. Sheldon Whitehouse has been trying to raise attention to the drastic threat to the rule of law represented by the current rightwing takeover of the federal judiciary. Here he addresses the Supreme Court’s appalling ruling on Presidential immunity from the law. (2)

Notes:

(1) ArtIII.S2.C2.6 Exceptions Clause and Congressional Control over Appellate Jurisdiction. US Congress website. <https://constitution.congress.gov/browse/essay/artIII-S2-C2-6/ALDE_00013618/> (Accessed: 2024-310-10).

(2) Sen. Whitehouse Lambasts Supreme Court Presidential Immunity Decision in Judiciary Hearing. Senator Sheldon Whitehouse YouTube channel 09/24/2024. <https://youtu.be/zXwCdWcxslo?si=Vjpix-u9boBmxVGE> (Accessed: 2024-31-10).

Legal accountability for the Trump-Pence Administration

There will be plenty of issues for the Biden-Harris Administration to deal with, obviously.

But one of the top priorities - I would say for the rule of law as such, the highest priority - to have a thorough, independent legal review of actions during the Bush-Pence Administration and prosecute crimes where there is solid legal reason to do so.

That's how the rule of law is supposed to work. It's critically important that the next Attorney General make sure that happens.

And, yes, that should include a serious investigation of crimes committed in pursuit of Trump's clown coup attempt since the election.

Greg Sargent wrote about the legal accountability issue this past August in If Biden wins, the post-Trump corruption purge will have to be epic Washington Post 08/05/2020. Most of his column reports on a report from the left-center but thoroughly Democratic-establishment Center for American Progress (CAP), whose president is Neera Tanden.

Sargent also adds this suggestion, "Yet another area — not discussed in the CAP report — would entail new legislative safeguards against the sort of relentless financial self-dealing that Trump engaged in. A model is Sen. Elizabeth Warren’s (D-Mass.) blueprint requiring the IRS to release presidential candidates’ tax returns."

The CAP report is authored by Sam Berger, How a Future President Can Hold the Trump Administration Accountable 08/06/2020. And it states, "the lesson from the past four years is clear: The absence of accountability is treated as license to escalate abuses of power."

Yes, Presidents and their administrations have to be held accountable to the law.

But this is not just an idea or an ideal or a principle. It's the duty of the Justice Department to enforce the law. As the CAP report also says:

It is critical for leaders to make clear now that those who break the law will face accountability in the future. Ignoring the Trump administration’s attacks on the rule of law will only invite further attacks - and likely even more brazen and threatening ones. The Trump administration’s efforts to undermine U.S. democracy have greatly escalated—with the administration politicizing the deployment of federal law enforcement and casting doubt on the legitimacy of electoral processes - and are likely to grow in intensity unless it is clear that there will be accountability for wrongdoing. [my emphasis]

It matters. It really, really matters.

Obama before look-forward-not-backward on Executive Branch crimes

 What Obama had to say about prosecuting criminal actions by members of a Presidential administration when he was running for President in 2008. From Will Bunch, Obama would ask his AG to "immediately review" potential of crimes in Bush White House Philadelphia Inquirer 04/14/2008.

What I would want to do is to have my Justice Department and my Attorney General immediately review the information that's already there and to find out are there inquiries that need to be pursued. ... I think that you are right, if crimes have been committed, they should be investigated. ... Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in coverups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law - and I think that's roughly how I would look at it.

This is one of the things that made Obama an attractive candidate to progressives in 2008 and made a lot of people think he was a progressive himself.

And just like other times when he is campaigning or fundraising, he can be eloquent and on point on major issues of concern to ordinary people, including Big Picture issues like democracy and the rule of law, which he was addressing there. If there had been substantive investigations and prosecutions of the torture crimes and various other serious lawbreaking during the Cheney-Bush Administration, the Bush crime gang could not have gone about their criminal enterprise in the way they have.

But from all appearances, he didn't mean a word of it. He was committed to impunity for lawbreakers of the Cheney-Bush government.

Obama on Investigating Bush Crimes: "Need to Look Forward" TPM 01/11/2009:

• David Johnston and Charlie Savage, Obama Reluctant to Look Into Bush Programs New York Times 01/11/2009
• Robert Kuttner, Truth, Reconciliation, and Obama The American Prospect 01/26/2009
• Arianna Huffington, Memo to Obama: Moving Forward Doesn’t Mean You Can’t Also Look Back Huffpost 02/13/2009 (updated 05/25/2011)
• Larry Cox, Obama must prosecute Bush-era torture enablers Christian Science Monitor 06/15/2009
• David Cole, Obama’s Torture Problem NYB Daily 11/18/2010
• Glenn Greenwald, Obama's justice department grants final immunity to Bush's CIA torturers Guardian 08/31/2012
• Thomas Frank, Compromising Positions Harper's Sept 2012
• Robert Parry, How ‘Looking Forward’ Tripped Up Obama Consortium News 03/12/2014
• Timothy Lee, Instead of prosecuting torturers, Obama prosecuted the guy who revealed the program Vox 12/09/2014
• Dan Froomkin, Obama Wanted to ‘Look Forward, Not Backward’ on Torture, But He Failed to Look Either Way Medium 03/13/2018
• Lisa Hajjar, Why Gina Haspel, the Queen of Torture, Was Able to Rise to the Top of the CIA The Nation 03/16/2018
• Adam Serwer, Obama's Legacy of Impunity for Torture The Atlantic 03/14/2018
• Murtaza Hussain, Report to U.N. Calls Bullshit on Obama's 'Look Forward, Not Backwards' Approach to Torture The Intercept 10/30/2014
• Rebecca Gordon, Torture’s legacy of impunity Responsible Statecraft 02/22/2020

Center for American Progress report on the need for rule-of-law accountability for Trump Administration crimes

I don't know whether to take this as an encouraging sign or one of those cracks-in-spacetime warnings. But the now-safely-establishment Center for American Progress (Neera Tanden, president) has just today published a paper on the need for a Biden Administration to treat Trump Administration crimes as crimes, How a Future President Can Hold the Trump Administration Accountable by Sam Berger 08/06/2020:

[T]he lesson from the past four years is clear: The absence of accountability is treated as license to escalate abuses of power.

It is critical for leaders to make clear now that those who break the law will face accountability in the future. Ignoring the Trump administration’s attacks on the rule of law will only invite further attacks—and likely even more brazen and threatening ones.

The Trump administration’s efforts to undermine U.S. democracy have greatly escalated with the administration politicizing the deployment of federal law enforcement and casting doubt on the legitimacy of electoral processes — and are likely to grow in intensity unless it is clear that there will be accountability for wrongdoing.

Now, in deference to the duck-and-cover instincts of the Party establishment, it prefaces that with, "Whenever the Trump administration ends, there may be good-faith concerns that addressing the administration’s misconduct will be too divisive, set a bad precedent, or lead to political pushback from the administration’s supporters."

Translation: Of course our corporate donors don't want to see this, and the Republicans will howl and cry and play the victim and the knee-jerk Democratic leadership response to that is always to hide under the bed.

In fact, you might want to download the PDF immediately, because the lobbyists are probably already making a fuss over this already. Because it goes into why the duck-and-cover response would be bad for the Democrats.

This is really, seriously, a basic rule-of-law issue. It would be a "left" idea only if the Democratic leadership is actually indifferent to the rule of law for government officials and have been just blowing smoke about their "resistance" to Trumpism for the last 3 1/2 years. "To look the other way with respect to the actions of the Trump administration would mean that the rule of law is not a constant, but rather that it only exists for certain administrations and for certain people  —  which is to say that it does not exist at all."

This CAP report is surprisingly good in making the case on how serious the responsibility of a new administration is on this:

The Trump administration is not simply trying to skirt the law — it is acting as if the law does not apply to it at all. If the rule of law is to have any meaning, it is incumbent on a future administration to make clear that it applies to everyone. The moral hazard of allowing the Trump administration to escape accountability would put our democracy permanently at risk.

Greg Sargent has some favorable comments about the CAP report in If Biden wins, the post-Trump corruption purge will have to be epic Washington Post 08/05/2020. He obviously has some doubt about whether Status Quo Joe will have the stomach or it: "Which immediately highlights an interesting conundrum: to what degree members of a Biden administration could undertake such an internal examination without involving Biden in any way, since that would risk straying into the sort of politicization that is the problem under Trump."

The policy of the Obama-Biden Administration was impunity for crimes by Republicans in office from the previous Administration. And also for bank CEOs responsible for criminal acts in the mortgage crisis. I see that as a serious dereliction of duty on that administration's part. The CAP reports argues:

Another concern is that holding the Trump administration accountable for its actions would be too divisive. Trump has continually sought to divide America to try to build his political support, which will likely lead to a strong desire by a future administration to rectify this problem by uniting the country around shared ideals. But one of those shared ideals is the primacy of the rule of law: that people in the United States should be treated equally, and that there should not be one justice system for the politically well-connected and one for everyone else. Having a rule of law means that it applies at all times and in all places—not only when an administration chooses to enforce it. The law applies right now to the Trump administration; that the administration refuses to acknowledge that fact is all the more reason that a future administration must reassert it. That means holding people accountable for their wrongdoing.

Those concerned about divisiveness often point to Gerald Ford’s pardon of Richard Nixon as a model. But that analogy is inapposite. Nixon resigned from office in disgrace, providing some measure of accountability for his actions—although, notably, he did not admit wrongdoing. And when Ford pardoned him, he first made sure that Nixon understood Ford’s view that acceptance of the pardon was an acceptance of guilt for his part in Watergate. Moreover, as discussed earlier, many people in Nixon’s administration as well as a number of his associates were investigated and held to account for their illegal actions. [my emphasis]