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Sunday, February 17, 2019

Malice

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States
-- Oath of Office, President of the United States
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
-- Amendment I, Constitution of the United States of America.
Here we are.

Another day in America.

Another day that begins with Trump raging like a madman on social media – and then departing for another round of golf.

Another day when Trump again declares his fellow Americans and American institutions to be enemies of the people.

This has become our norm. Just another day in America.

Just another day when Donald Trump wipes his ass with the Constitution.



Look at that.

No, I mean it. Look at that.

You don’t even have to look carefully, it’s right out in open.

THE RIGGED AND CORRUPT MEDIA IS THE ENEMY OF THE PEOPLE!

Nothing funny about tired Saturday Night Live on Fake News NBC! Question is, how do the Networks get away with these total Republican hit jobs without retribution? Likewise for many other shows? Very unfair and should be looked into. This is the real Collusion!

Now, of course, when you protest, Trump himself says that he doesn't mean all the Press, just those he deems to be "fake news" and the implication is that Trump himself should be the sole arbiter of what constitutes truth.

The President of the United States of America is quite literally declaring this morning, again, that the oath he swore means nothing to him.

The President of the United States is literally saying that he considers the fundamental institutions of liberty and democracy to be a roadblock to his personal power and ambition -- which, of course, they are, exactly as they were designed to be – but Trump considers this to be a defect instead of the fundamental institution of our Republic.

By design, the President’s power is supposed to be restricted.

That’s what the presidential oath of office directly implies, that’s why it requires the office holder to preserve, protect, and defend the Constitution and not a political ideology, or the government, or even the country.

The fact that Trump does not understand this, is in point of fact utterly incapable of understanding this, is evident in every word he speaks and every action he takes from his assertion that the Press is the enemy of the people to his declaration of a national emergency to override congress and thus the will of those self same people.

When it comes to Speech and to the Press, the Constitution is quite specific: “…or abridging the freedom of speech, or of the press.”

There is no caveat on those rights, no qualifier, no restriction.

In point of fact, the Press is the only private enterprise whose rights are specifically enumerated in the Constitution. No qualification was placed on that freedom, none, not even the minimum caveat “being necessary to the security of a free State” as was placed upon the oh-so-sacred Second Amendment.

Nor was any such qualifier leveraged upon a citizen’s freedom of speech.


This is because the Press is the watchdog of liberty and the enemy of tyrants.


Now, an argument can certainly be made that the Press as an institution does not always, or perhaps not often, live up to that responsibility.

But the Press is not required to.

Again, the Constitution places no qualification or restriction upon the right. None.

The Press is free to publish articles at the highest levels of journalistic integrity or to print the alleged sexual escapades of popular entertainers. The Press is a private enterprise, a business – often (hopefully, if you work there) for profit – and so I’ll leave it as an exercise to the reader which type of story actually sells more newspapers or garners a higher number of viewers on TV and the Internet. Fox News is popular with the right, because it tells conservatives what they want to hear. It’s the same everywhere else. The National Enquirer publishes stories of space alien babies, claims Supreme Court Justice Antonin Scalia was murdered by a hooker, or names Hillary Clinton’s Secret Lesbian Lovers, because that’s what Americans want to read. Sex sells. Violence sells. Conspiracy sells. This is less a condemnation of the Press, and more a statement on human nature. Alex Jones isn’t popular because he’s talented or attractive or sane, he’s popular because he entertains the lunatic fringe – which isn’t so far out on the fringe any more. Sean Hannity, Glenn Beck, Ann Coulter, these people aren’t “journalists” in any professional sense, but the Constitution doesn’t require any particular credentials to call yourself such.

Because the Press is a private enterprise, for profit, we get the Press that we want.

We get the the Press that sells.

We get the Press we deserve -- just like government.

The Framers, the men who wrote the Constitution, they knew this.

The Press was no different in their day and in fact it was even more lurid, more prone to titillation and hyperbole, and more free of fact than it is nowadays. And yet – and yet – they granted the Press unqualified freedom, the only such institution called out and given enumerated rights in the Constitution.

This is also true, the unrestricted part anyway, of Freedom of Speech.


Because despite the many drawbacks of a for-profit press and an unruly and mouthy population, liberty cannot exist without such unrestricted freedoms.


What?

What’s that?

Oh. I see. You have a problem with the qualifier.

Those rights are not “unrestricted,” you say? You can’t shout “Fire!” in a crowded movie theater, for example. Our rights, Freedom of Speech, Freedom of the Press, these rights are not unrestricted.

This is true.

But it’s also wrong.

See, you can shout “Fire!” in a crowded theater (or in a more modern example, “gun!”). You can. But you’re responsible – at least in part – for what happens next. We have laws prohibiting the incitement of public panic (called “Inducing Panic Laws”). Conversely if there actually is a fire, or a gun, and you don’t sound the alarm, you can be held liable for failure to warn people. Now, Failure To Warn in a case like this is not particularly common, it’s more for cases involving large companies with defective or harmful products, but does happen at the personal level and is likely to increase (see cases involving mass shootings where people knew or had reason to suspect the shooter’s intent prior to the act. Particularly in school shootings involving teen perpetrators).

Likewise, the Press can be held accountable for publishing deliberately malicious information.

In fact, there’s an entire branch of law dedicated to such, and ironically it involves a common target of Trump’s ire: The New York Times.

At the height of the Civil Rights era, The New York Times published an article – a full-page advertisement really, paid for by The Committee to Defend Martin Luther King and the Struggle for Freedom In The South. The Public Safety Commissioner of Montgomery, Alabama, one L. B. Sullivan, was incensed by what he called called inaccuracies – what Trump would today call “Fake News” – and he took it personally. He demanded the Times print a retraction.

The Times refused.

The Governor of Alabama then demanded a retraction and this time the Times complied, citing new information and that the intention hadn’t been to defame Alabama the state.

Sullivan was not mollified. He felt his character had been libeled and he sued in Alabama state court.

Unsurprisingly, for the time, he won.

He was awarded $500,000 by the Alabama state trial court and the Alabama Supreme Court declared “The First Amendment of the U.S. Constitution does not protect libelous publications.”

So the New York Times appealed the case to the US Supreme Court.

In 1964, the Supreme Court of the United States decided New York Times Co. v. Sullivan in favor of the New York Times unanimously

Justice William J. Brennan, writing the Court’s opinion, cited a previous case:

Mr. Justice Brandeis, in his concurring opinion in Whitney v. California, 274 U.S. 357, 375-376, gave the principle its classic formulation:

Those who won our independence believed . . . that public discussion is a political duty, and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law -- the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

Thus, we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

New York Times Co. v. Sullivan is a landmark.

The Supreme Court established the Actual Malice Standard, it is one of the key decisions guaranteeing Freedom of the Press, and was made specifically to ensure that public officials could not use the courts to stifle freedom of speech or to suppress political criticism.

Without this protection, the South could have prevented the Press from reporting on police brutality and government abuses during the Civil Rights Movement. Without this protection, Nixon could have used the courts to suppress reports of his chicanery as libelous to himself.  Reagan could have tried to hide the Iran-Contra Affair for the same reason. Or Bill Clinton could have tried to sue the Press to hide his affair.

The press is not free to engage in willful libel or malice.

But there is a significant difference between libel and a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

That, that right there, is what the President of the United States swears an oath to preserve, protect and defend. That.


The Constitution places no qualification on Freedom of Speech or Freedom of the Press. With great, great care and deliberation, the Court does.


This is the Judicial Branch’s Constitutional duty. Not the Executive’s.

It is not within the President’s power to decide what constitutes Freedom of Speech or Freedom of the Press.

It is not within the President’s power to decide truth for the American people.

Nor is it within the President’s power to declare the fundamental institutions of our Republic as enemies of the people.

The President is sworn to uphold the Constitution as interpreted by the Supreme Court: I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

That is the limit of his power.

That.

No more.

No less.

The Constitution was not written to place restrictions upon liberty.

The Constitution was very specifically written to place restrictions upon the President.

The very fact that Donald Trump does not, will not, can not, acknowledge this makes him fundamentally unqualified for the office.


It is much easier to pull down a government, in such a conjuncture of affairs as we have seen, than to build up, at such a season as the present.
John Adams, letter to James Warren, 1787



67 comments:

  1. Chief: "The press is not free to engage in willful *liable* or malice."

    S/b "libel." It's wrong in the next para, too.

    Thanks for another great piece.

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    1. Not wrong
      https://fandom-grammar.livejournal.com/127998.html

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    2. never mind -- I thought you were saying "libel" was wrong.

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  2. Great as always, Jim. 2 typos: "The press is not free to engage in willful liable or malice.
    But there is a significant difference between liable and a"
    Should be libel.

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  3. Brilliant essay Chief. I'm truly saddened that so many supposed "patriots" continue to support this idiot's constant attacks on the constitution.

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    1. Have the checks and balances failed? Did I miss something? I think Trump overall does a better job of defending the constitution for the People of the US than other presidents, but hey-- your mileage may vary.

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    2. You're entitled opinion, however misguided you are.

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    3. He hasn't defended the Constitution once. Not ONCE.

      The courts have defended it against HIM.

      It takes some serious rose colored glasses (or chemical help) to see tRump as defending the Constitution. Especially better than other Presidents.

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    4. Anonymous needs to show their homework with real #FACTS, attribution, and real sources as to why he/she believes the “president” has done a better job than others before him!!

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    5. Anonymous needs to show their homework as to why the “president” has done a better job than previous Presidents in defending the Constitution from real #Facts, with attribution, and real sources!!

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    6. "Anonymous" at 3:12 p.m. is just a troll, I think. Unless, course, by "People" he's referring to corporations and other members of the oligarchy and "constitution" as profits and balance sheets. Then, sure, Little Donnie is doing a stellar job.

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  4. "Libel". Thank you.

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  5. Excellent explanation of the issue. Thank you.

    P.S. it's spelled "libel."

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  6. Brilliant! Timely and relevant. One of your best essays yet. Thanks for all that you do!

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  7. Thank you once again for clarifying the details for the people in the back of the class.

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  8. Nailed it as always, Chief. Sit back and relax, hug your wife, hug your dogs, and have a shot of Jameson. You've done your duty!

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  9. Through your essays, Mr. Wright, you've hit many home runs deep into center field. With this essay, you've hit a grand slam in what may be the bottom of the ninth. Thank you for your scholarship and plain talk. Give 'em hell, Jim.

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  10. Thank you. Again. Your words are the sword of truth slaying the darkness of filthy lies coming from Washington. My question is, as always, what can I do? One little voice crying in the darkness for justice?

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    Replies
    1. Find others to join with. One voice in a crowd can be drowned out easily. A chorus singing out can cut through the noise.

      One snowflake can't hurt anyone, but when you get a lot of them moving together? That's an avalanche, and very little can stand in its way.

      Look for a cause you believe in: an environmental group, an LGBT support group, a political action group, whatever lights a fire in your soul. Donate and/or volunteer with them. Put your money and effort where your heart is and help make things happen. Everyone has something to offer.

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    2. Contact your local Democratic Party and ask how you can support municipal and County candidates and progressive issues, and even special statewide elections and initiatives. If you prefer not to get involved with the party, find a local branch have a progressive organization or issue you care about, such as indivisible, Sierra Club, or MoveOn. The work may not be sexy, but you'll make a difference :-)

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    3. If nothing else, recognize that every interaction you have with other human beings sets a tone, an environment, that affects more than just you and the one other person you may be interacting with. It goes a long way toward changing the tenor of our national interactions if our individual ones are rooted in thoughts and actions that are just and kind. It helps to be well-informed and it helps to be aware of when you are being manipulated and/or give fact free content.

      There are two factors here: input (what you take in) and output (what you demonstrate to others). The more informed and rational we are about what we talk in, the more we will be able to interact even with irrational and hateful people with both justice and kindness. You'd be amazed at how quickly emotional content spreads and how broad its influence. If we strive to be unfailingly just and kind, the world will change around us.

      The reverse is also true: the more irrational and hostile we are, the more quickly and broadly that will spread ... even as we've seen.

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  11. Jefferson, I believe, wrote about a "free marketplace of ideas," which sometimes means your feelings will be hurt. Deal with it, Trump

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  12. Yet another of the innumerable drawbacks of having elected "a businessman, not a politician" as President. Politicians in this country, at least most of them, generally have a grasp of what the Constitution means, and how it actually works. Businessmen (especially dishonest charlatans like Donald Trump) often tend to view the laws as mere suggestions, and rely on purchasing legal action to redefine The Rules as "what I can get away with".
    But then again, this is the Good Old U S of A: where (IIRC) not only did a significant plurality of pollees not recognize the provisions of the Constitution's Bill of Rights (Amendments 1-10), but disapproved of them in any case....

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    Replies
    1. I believe we are best guided by neither politicians nor businessmen, but by statesmen and women. Partisan politics—just say 'No.'

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  13. Thank you, yet another excellent essay that I wish you never had to write.
    One correction:
    "Because the Press is a private enterprise, for profit, we get the Press we that we want."
    (one too many "we")

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  14. Excellent post, as always.

    "Because the Press is a private enterprise, for profit, we get the Press we that we want."
    I think there is an extra "we" in that sentence.

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  15. Excellent essay. On point as always. BZ brother!!

    Typo:
    "Because the Press is a private enterprise, for profit, we get the Press we that we want.". Extra 'we' after 'Press'.

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  16. Trump is so clearly a threat to our constitution and yet he is cheered and encouraged by his rabid base of drooling fools. Thank you, Jim, for always clearly pointing out exactly what the issues and points are.

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  17. As cogent and well written a defense of free speech as I have ever read.

    When it comes to Trump's views and "does not, will not, can not" it seems to almost certainly be that last one. He can not. Trump acts like, talks like, argues like someone with a drug addiction. Someone with a gaping hole in their self awareness. Sitting under the elephant in the room.
    Donald is n addict. He needs the adulation of his base, He needs flattery from any source. He needs whatever it takes to numb him from the paralyzing fear that he is ordinary.

    He will never understand another’s right to criticize him any more than an addict understands that being denied their drug is what is best for them.
    Or more accurately his addiction will not allow it.

    Sometimes, some days I wonder at what makes him this way. Is it in his nature? An unfortunate expression of genes? His childhood? Fears of revealing inadequacies? All the above?

    Some days I wonder

    This isn't one of those days. This is an I just don't give a goddamn why he is broken. And beyond the implications for us, our nation, I don't care that he ever understands himself at all.
    I just want him gone. And us to try to find normal again.

    We are going to be changed

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  18. At what point do these actions rise to the level of high crimes and misdemeanor. Does not a violation of his oath constitute such?

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  19. A little nit-picky but capitals on Congress.

    The fact that Trump does not understand this, is in point of fact utterly incapable of understanding this, is evident in every word he speaks and every action he takes from his assertion that the Press is the enemy of the people to his declaration of a national emergency to override congress and thus the will of those self same people.

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  20. As always, a brilliant piece that absolutely cuts to the heart of the matter. I love the no nonsense writing, the merciless use of facts. Perfect. Thank you again.

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  21. As disgusting as Trump is, never forget that the republican party stands with him. They are equally, if not more guilty than Trump as they enable his attempts to dismantle our country, it's laws and traditions. False patriots, one and all.

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  22. Do you really think he knew that he was swearing an oath? I don't. I think he just mouthed the words and paid no attention. He doesn't know or care what being President is all about. For him it's just one more lousy "deal."

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  23. It's tough to be a nonbeliever when all you can think of to say is JESUS CHRIST!

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    1. So very true, but I think you forgot the H, as in
      JESUS H CHRIST what is going on here?"
      I think a large percentage of members of Congress have lost their moral compass, and are engaging in some form of intellectual onanism in hopes of keeping their jobs while losing their souls.

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  24. There are two "outs" here for Trump.
    1. The oath states that he "... will to the best of my Ability, preserve, protect and defend the Constitution ..."
    Trump has neither the ability nor the desire to "... preserve, protect and defend the Constitution ..." Period. It is his nature to do exactly what he wants - no more and no less. He is unable to do otherwise. So, in his eyes, there is no need to do so. He is truly incapable of performing these "trivial suggestions." This alone should be enough to invoke the 25th Amendment. He, quite simply, cannot perform the duties required of the President.
    2. The Constitution states that "Congress shall make no law ..." It does not specifically mention "The President." ONLY Congress. So, to him, he is free to make any such laws himself (read - Executive Orders, and/or "Emergency Declarations." Of course, Congress was given the power to overturn such decisions, but it is - typically - required to have a 2/3 majority vote to do so. An almost impossible task today - if ever.
    This would be dictator feels that his oath, and the Constitution itself are backing his every move.
    We are not dealing with a rational human being as President now. We have to take that fact into account.

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  25. Sad and angry that, because the 30% of Americans who are Trump's base are concentrated in the states with the smallest populations and the most political clout, we get the president that they wanted and deserve. We 70% need to work a lot harder.

    Correction: I believe it was Iran-Contra, not "Iran-Countra."

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  26. Well hey, maybe when someone invented that oath they should have taken some steps to ensure that people who didn't obey it could be prosecuted or deposed in some fashion, on the moral grounds that they were disrespectful of the country, it's people and it's laws; it's a pity that you built an executive position on good intentions and bad English grammar.

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  27. self same people ?

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    1. Yes. The self same people.

      The line is, "...his assertion that the Press is the enemy of the people to his declaration of a national emergency to override congress and thus the will of those self same people."

      Trump declares that the Press is the Enemy of the People. Directly implying that The People are important, their will is important.

      Then moments later, Trump declares a national emergency expressly in opposition to the majority will of the very same people -- as determined by recent elections and the make-up of the US House of Representatives, i.e. The People.

      Self same, meaning the exact same.

      Hope that answers your question // Jim

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    2. I beg to quibble respectfully. It should be "self-same" (hyphenated as a compound adjective) or as is coming into popularity dispensing with the hyphen and spelling it "selfsame." Not two words.

      Google it or consult the Oxford English Dictionary.

      Delete
  28. Thank you for a great article. So sad that we are at this point in our country where it needs to be spelled out.

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  29. A corollary that deserves a mention is _Near V. Minnesota_, which would almost certainly have established "prior restraint" of the press as legal if one Justice hadn't died before the Supreme Court heard the case. The final decision was 5-4.

    And _Near_ involved a thoroughly racist and antisemitic paper that attacked the Governor and other Minnesota politicians for blatant corruption, proven true afterward. It was very much a decision on the lesser of two evils - but reinforced the 1st Amendment nonetheless.

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  30. Copy edit suggestion: replace "liable" with "libel" in two instances.
    "The press is not free to engage in willful liable or malice."

    "But there is a significant difference between liable and a profound national commitment to the principle that debate..."

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  31. When you have a self-obsessed narcissist in the Oval Office, I suppose it is impossible to expect him to value, or even understand the Constitution. “The Madness Of Donald tRump” now playing on a Twitter page near you.

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  32. Spot on and well said sir. Thank you.

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  33. You make a good point about the fact that the Constitution quite purposely limits the power of the President--and the fact that people like Trump (and King George) were the reason why. It is, I think, what Trump does not understand about being President. He wanted to be President because he considered it the most powerful position in the world, and he thought he deserved to be the most powerful man in the world. The fundamental failure of this thinking is that the President is only "the most powerful person in the world" as long as they continue to lead the most powerful nation in the world (not that it is important to me that we be that), and destroying the checks and balances on the tripartate structure of America weakens the country fatally.

    He destroys that to which he aspires because he thinks he has it already.

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  34. Dear Jim, thank you from the Netherlands for making sense of your complicated society and politics!

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  35. Thank you! No democracy can stand without free access of the citizens to the facts and conversations affecting the nation.

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  36. Powerful and clear article, Chief. Gives me even more anxiety about Drumpf's strategy and celebration of Supreme Court picks based on perceived personal loyalty.

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  37. I am just coming to terms with the constitutional implications. The fact that he used the word "retribution" in an informed way gave me the chills. I suspect he is to cowardly to act but, he does control legions of people and institutions.

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  38. This summation says much: "The Constitution was not written to place restrictions upon liberty.

    The Constitution was very specifically written to place restrictions upon the President.

    The very fact that Donald Trump does not, will not, can not, acknowledge this makes him fundamentally unqualified for the office."

    Thank you Jim Wright for writing this powerful essay. I hope its spreads far and wide.

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  39. Thank you. Where is our Justice Brandeis today?

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  40. Brilliant, Jim as you always do. No other comments or edits other than "OMFG, I had to pour myself a whiskey, sit down and take a deep breath". Sharing this with a community activist and hoping that will help it to "go viral", i.e spread like wildfire.

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  41. Sadly, we learned today (thank you @steve_vladeck) that SCOTUS Justice Thomas, writing in concurring with the denial of cert for the McKee v Cosby case, is calling for the court to revisit the NYT v Sullivan case, arguing it was wrongfully decided. This as POTUS repeatedly calls for changes in our libel laws.

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  42. Is it any wonder that Justice Clarence Thomas picked today to submit a brief to the Supreme Court that in his opinion New York Times vs. Sullivan should be revisited and possibly reversed? I guess they are listening (reading Stonekettle)?

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  43. You had to bring up Sullivan and put it on Clarence Thomas's radar? I'm sure he reads you regularly. . . .

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  44. Thomas Jefferson "Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter."

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