I've long thought I was pretty well informed about how "government" worked (and didn't), but Trump II has taught me things I never thought of, especially about how crucial custom and precedent are to keep things working.
My big fear at this point is that when we get through this -- we *will* get through this -- mostly well intentioned people will try to fix all the broken parts but their efforts will probably make things worse. Because meticulously drafted, written-down laws can't substitute for essential customs that most of us are willing to abide by.
Susanna, you're right. People in power will want to purport to "fix" things. Part of the reason they'll want to 'fix" things is that they will want the rest of us to think that they didn't plainly fail to see, understand or use the legal means that already exist to oppose the misconduct of people like Trump and the people using him and supporting him.
We see people who should know better saying things like "the framers (of our Constitution) never anticipated" or "couldn't foresee" the kinds of things we're experiencing. But they clearly did foresee those things, and they designed our Constitution to enable us to prevent and remedy the problems we're experiencing.
In The Federalist No. 1, Alexander Hamilton warned people about people like Trump and those who are using him or supporting him:
"a dangerous ambition [even] more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants."
I agree they did foresee the dangers, but I believe that, with good reason, they were thinking mostly of the dangers they'd either seen in action or could extrapolate from what they did see.
What they couldn't foresee, understandably, was all the dangers that would arise in the 19th, 20th, and early 21st centuries. Especially they didn't foresee that economic interests would become more powerful than the government. True, the contention over slavery might have foreshadowed this, but it sure as hell wasn't obvious to many, even the Southerners who were uneasy about slavery.
They also didn't foresee universal male suffrage, and eventually universal suffrage, where non-rich voters who didn't share common assumptions and a common education were subject to the temptations and outright bribes of the more affluent.
They certainly didn't see what would become of the plethora of small to medium-sized newspapers as radio and then TV and then cable were developed.
As I understand it, the originalists want to go back to a world where no one knew what we -- and they -- have right before our eyes. They're disingenuous at best and deceitful at best.
Susanna, I think maybe you misunderstood the scope of my comment. It was only about whether the people of 1787-1791 anticipated people like Trump and the people who are using him or supporting him. But they definitely did see (in their own time) huge commercial enterprises that rivaled the power of government. In fact, that's how the colonies, themselves, started out.
The DOJ lawyers lie indiscriminately, because they know that when these cases reach the Supreme Court, which most of them will, they’ll be rubber stamped by a cooperative SCOTUS majority.
Lisa, I "liked" your post. But it perpetuates an egregious abuse of the concepts relevant to the presumptions you addressed. It is contrary to our Constitution (and even anti-constitutional) to teach people that any such presumption favors our public servants merely because they are public officials.
Generations of Judges, DOJ attorneys and commentators have misled Americans to believe that a "presumption of regularity" or "presumption of good faith" or "presumption of constitutionality" applies generally to the actions of our public servants. In fact, many judges and DOJ attorneys know that any general use of any such presumption is blatantly counter-constitutional.
Such presumptions (such blind trust) are no better than the unconstitutional "establishment of religion" (forbidden by the First Amendment). Blind faith in public servants merely replaces priests with public officials. That makes absolutely no sense as a general rule. In fact, James Madison emphasized that only fools would blindly trust our public servants not to abuse power:
"A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives."
The presumptions above have a very limited legitimate scope. They are (and must be) limited to litigation in a particular context. The presumptions above make sense legally only as a mere corollary of a particular legal burden. A legal presumption favoring one party always must be paired with a legal burden that the other party must bear. Stating a legal presumption in court proceedings is simply another way of stating a legal burden of proof or a legal burden of production of evidence. Nothing more.
Justice Kagan's dissent in Alexander v. South Carolina State Conference of the NAACP in 2024 also explained how presumptions (in litigation) must be paired with a particular burden (in litigation).
The classic example of a presumption paired with a burden is in criminal law. Everyone knows of this presumption, and it highlights that the government does not and should not always benefit from any presumption that government employees acted in "good faith or with "regularity" or did not violate our Constitution. In a criminal case, the government always must prove every material fact establishing guilt beyond a reasonable doubt. The corollary is that the defendant enjoys the presumption of innocence. There is no presumption favoring the government.
Federal law (Rule 301. Presumptions in Civil Cases Generally) provides another important example. It emphasizes that the presumption does not apply to any public official merely because he is part of "the government." The rule in ANY civil litigation is that ANY "party against whom a presumption is directed has the burden of producing evidence to rebut the presumption." In most cases the plaintiff must bear the burden of proof regardless of whether the defendant is the government or a private entity.
In some cases, however, e.g., under the Freedom of Information Act (FOIA) federal law (FOIA) says the government must bear the burden of proof, so the presumption must be that the government did NOT act in good faith. The clear and deliberate violation of FOIA and federal rules of procedure and evidence by federal judges and DOJ attorneys in FOIA cases show why it's harmful to perpetuate the misrepresentation that "the federal courts should presume" in all cases "that government employees have properly discharged their official duties" so "the default is presuming that government employees are undertaking their duties in a lawful fashion and not lying to the court about them." Giving the government the benefit of a "presumption of good faith" in FOIA cases is clearly contrary to federal law and our Constitution. Despite the clear requirements of a governing federal statute (FOIA) and federal rules of procedure and evidence, and emphasis in multiple SCOTUS opinions that in FOIA cases, the government cannot benefit from any "presumption of good faith," many judges and DOJ attorneys lie and misrepresent that government employees who sign a declaration in FOIA cases are entitled to a "presumption of good faith" merely because they are government employees.
Any general pretense (outside of the particular legal context, above) of a "presumption of regularity" or "presumption of good faith" or "presumption of constitutionality" is a pernicious anti-constitutional deception. No such presumption ever did (legitimately) apply as a general rule to any public servant. Even SCOTUS unanimously emphasized the reason.
In New York Times Co. v. Sullivan, 376 U.S. 254 (1964) SCOTUS unanimously emphasized the following to discuss the true meaning of the plain text of our Constitution. Our “Constitution created a [republican] form of government under which ‘The people, not the government, possess the absolute sovereignty.’ [Our Constitution] dispersed power” in many ways precisely because “of the people’s” extreme “distrust of concentrated power, and of power itself at levels.”
One vital reason that no presumption above applies generally (outside of litigation when the other party must bear an evidentiary burden) is that “the right of freely examining public characters and measures, and of free communication among the people thereon” is that those particular powers were “deemed” (by the people who founded this nation and wrote and ratified our Constitution and our Bill of Rights) to be “the only effectual guardian of every” American “right.”
The “citizenry is the final judge of the proper conduct of public business.” Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 495 (1975). Alexander Hamilton similarly emphasized that “[t]he two greatest securities” that “the people” have “for the faithful exercise of any delegated power” are “the restraints” imposed by “public opinion” and the public’s “opportunity of discovering with facility and clearness [official] misconduct” to facilitate officials’ “removal from office” or “punishment.” Federalist No. 70 (https://guides.loc.gov/federalist-papers/text-61-70#s-lg-box-wrapper-25493457).
The foregoing are the reasons that our Constitution's First Amendment expressly secures "the freedom of speech" and 'press" and "the right of the people" to "assemble" to secure our self-government.
Trump when signing executive orders, The people he appoints when following his agenda, DoJ lawyers, SCOTUS... and a surprise contribution by the DC court of appeals...
All acting with extreme disregard for the laws. Not trying to come up with novel perspectives and arguments on the laws, just coming up with bogus BS excuses that don't pass the sniff test, or often they just simply lie or even more simply ignore the clear reading of the law.
And then we get to Trump and his LOOOONG list of crimes and broken oaths.
So here is the question: At what point do we stop assuming there are crimes Trump is not committing?
Here are a few crimes Trump is credibly committing based upon publicly observed behavior:
Trump was a business partner with Epstein in the Child Sex Trafficking crime ring.
Trump is acting as an agent for Putin, perhaps because Putin (credibly) has evidence Trump committed serious crimes (Such as partnering with Epstein in the child sex trafficking crime).
Trump (or Putin in order to protect Trump as an asset) had Epstein killed in jail.
The 'assassination attempt' where his ear got scratched was faked, and the shooter was instructed to kill others, (after Trump was safely buried under Secret Service agents) in order to 'sell it'.
The reasons for the illegal (as determined by the specialist court) Tariffs was to give Trump leverage in extracting bribes, and to isolate / weaken the US per Putin's instructions.
The Reason Trump is acting so extreme is because he is afraid to go to jail (for so very many different crimes). The only way he stays free is if he keeps being president, until he dies.
Here is a clue, every time Trump uses the word "Hoax" we should consider it an admission of guilt.
While many of his crimes seem unlikely, such as stealing a huge number of classified (even top secret) files in a HUGE number of boxes of government files (which were also stolen), or staging an insurrection to stay in office, or working with Russia to steal an election (2016), we have massive evidence of all of these and their sloppy cover-ups, so why would we assume Trump is innocent of ANY of these credible crimes? Sure, if he was in a court of law, the burden of proof would be on the prosecution, but Trump is literally 'above' the law now with the DoJ being his personal tool and SCOTUS letting him do what he wants despite the law or the constitution.
At what point do we stop saying "Trump wouldn't do that..."? At what stage do we just assume 'did it' and move onto the next stage, where we figure how to use it, what to do about it.
Yes, it is good that courts are starting to call BS whenever Trump's minions speak in court, but as we saw with the DC circuit and SCOTUS, we cannot place our faith in the law or the constitution any more, unless backed up by pressure that cannot be ignored.
I was an Assistant Attorney General in Tennessee during the late 70s. My boss, who later served on the TN Supreme Court, made it clear to me that the AG would not defend agencies that violated the law, and would not defend laws that violated the state or federal constitution.
There is a legal basis for this. Rule 8.4 of the ABA Model Code of Professional Responsibility defines misconduct to include violating the Code. Comment 7 begins: "Lawyers holding public office assume legal responsibilities going beyond those of other citizens. " The actions of DOJ Dye describes in this post sound like violations of several of the parts of Rule 3.
Of course, lying has become SOP for the DoJ … and Trump Administration as a whole. And, sad to say, the Supreme Court as well: All six conservative justices, as nominees, promised that Roe v. Wade was law and binding precedent … until Barrett joined, and Roe magically became “egregious”.
Lies? In federal courts? Par for the course. What’s worse, the Supreme Court - by acceding to Trump every step of the way - quietly accepts same. And, on the shadow docket and without explanation, SCOTUS itself too often chooses to ignore the findings of the lower courts.
I've long thought I was pretty well informed about how "government" worked (and didn't), but Trump II has taught me things I never thought of, especially about how crucial custom and precedent are to keep things working.
My big fear at this point is that when we get through this -- we *will* get through this -- mostly well intentioned people will try to fix all the broken parts but their efforts will probably make things worse. Because meticulously drafted, written-down laws can't substitute for essential customs that most of us are willing to abide by.
Susanna, you're right. People in power will want to purport to "fix" things. Part of the reason they'll want to 'fix" things is that they will want the rest of us to think that they didn't plainly fail to see, understand or use the legal means that already exist to oppose the misconduct of people like Trump and the people using him and supporting him.
We see people who should know better saying things like "the framers (of our Constitution) never anticipated" or "couldn't foresee" the kinds of things we're experiencing. But they clearly did foresee those things, and they designed our Constitution to enable us to prevent and remedy the problems we're experiencing.
In The Federalist No. 1, Alexander Hamilton warned people about people like Trump and those who are using him or supporting him:
"a dangerous ambition [even] more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants."
I agree they did foresee the dangers, but I believe that, with good reason, they were thinking mostly of the dangers they'd either seen in action or could extrapolate from what they did see.
What they couldn't foresee, understandably, was all the dangers that would arise in the 19th, 20th, and early 21st centuries. Especially they didn't foresee that economic interests would become more powerful than the government. True, the contention over slavery might have foreshadowed this, but it sure as hell wasn't obvious to many, even the Southerners who were uneasy about slavery.
They also didn't foresee universal male suffrage, and eventually universal suffrage, where non-rich voters who didn't share common assumptions and a common education were subject to the temptations and outright bribes of the more affluent.
They certainly didn't see what would become of the plethora of small to medium-sized newspapers as radio and then TV and then cable were developed.
As I understand it, the originalists want to go back to a world where no one knew what we -- and they -- have right before our eyes. They're disingenuous at best and deceitful at best.
Susanna, I think maybe you misunderstood the scope of my comment. It was only about whether the people of 1787-1791 anticipated people like Trump and the people who are using him or supporting him. But they definitely did see (in their own time) huge commercial enterprises that rivaled the power of government. In fact, that's how the colonies, themselves, started out.
"The best lack all conviction,
While the worst are full of passionate intensity."
And small brains, bloated with the presumed blessing of Jesus.
Press on to commit atrocities under the cloak of a religious imperative
The DOJ lawyers lie indiscriminately, because they know that when these cases reach the Supreme Court, which most of them will, they’ll be rubber stamped by a cooperative SCOTUS majority.
Lisa, I "liked" your post. But it perpetuates an egregious abuse of the concepts relevant to the presumptions you addressed. It is contrary to our Constitution (and even anti-constitutional) to teach people that any such presumption favors our public servants merely because they are public officials.
Generations of Judges, DOJ attorneys and commentators have misled Americans to believe that a "presumption of regularity" or "presumption of good faith" or "presumption of constitutionality" applies generally to the actions of our public servants. In fact, many judges and DOJ attorneys know that any general use of any such presumption is blatantly counter-constitutional.
Such presumptions (such blind trust) are no better than the unconstitutional "establishment of religion" (forbidden by the First Amendment). Blind faith in public servants merely replaces priests with public officials. That makes absolutely no sense as a general rule. In fact, James Madison emphasized that only fools would blindly trust our public servants not to abuse power:
"A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives."
The presumptions above have a very limited legitimate scope. They are (and must be) limited to litigation in a particular context. The presumptions above make sense legally only as a mere corollary of a particular legal burden. A legal presumption favoring one party always must be paired with a legal burden that the other party must bear. Stating a legal presumption in court proceedings is simply another way of stating a legal burden of proof or a legal burden of production of evidence. Nothing more.
Justice Kagan's dissent in Alexander v. South Carolina State Conference of the NAACP in 2024 also explained how presumptions (in litigation) must be paired with a particular burden (in litigation).
The classic example of a presumption paired with a burden is in criminal law. Everyone knows of this presumption, and it highlights that the government does not and should not always benefit from any presumption that government employees acted in "good faith or with "regularity" or did not violate our Constitution. In a criminal case, the government always must prove every material fact establishing guilt beyond a reasonable doubt. The corollary is that the defendant enjoys the presumption of innocence. There is no presumption favoring the government.
Federal law (Rule 301. Presumptions in Civil Cases Generally) provides another important example. It emphasizes that the presumption does not apply to any public official merely because he is part of "the government." The rule in ANY civil litigation is that ANY "party against whom a presumption is directed has the burden of producing evidence to rebut the presumption." In most cases the plaintiff must bear the burden of proof regardless of whether the defendant is the government or a private entity.
In some cases, however, e.g., under the Freedom of Information Act (FOIA) federal law (FOIA) says the government must bear the burden of proof, so the presumption must be that the government did NOT act in good faith. The clear and deliberate violation of FOIA and federal rules of procedure and evidence by federal judges and DOJ attorneys in FOIA cases show why it's harmful to perpetuate the misrepresentation that "the federal courts should presume" in all cases "that government employees have properly discharged their official duties" so "the default is presuming that government employees are undertaking their duties in a lawful fashion and not lying to the court about them." Giving the government the benefit of a "presumption of good faith" in FOIA cases is clearly contrary to federal law and our Constitution. Despite the clear requirements of a governing federal statute (FOIA) and federal rules of procedure and evidence, and emphasis in multiple SCOTUS opinions that in FOIA cases, the government cannot benefit from any "presumption of good faith," many judges and DOJ attorneys lie and misrepresent that government employees who sign a declaration in FOIA cases are entitled to a "presumption of good faith" merely because they are government employees.
Any general pretense (outside of the particular legal context, above) of a "presumption of regularity" or "presumption of good faith" or "presumption of constitutionality" is a pernicious anti-constitutional deception. No such presumption ever did (legitimately) apply as a general rule to any public servant. Even SCOTUS unanimously emphasized the reason.
In New York Times Co. v. Sullivan, 376 U.S. 254 (1964) SCOTUS unanimously emphasized the following to discuss the true meaning of the plain text of our Constitution. Our “Constitution created a [republican] form of government under which ‘The people, not the government, possess the absolute sovereignty.’ [Our Constitution] dispersed power” in many ways precisely because “of the people’s” extreme “distrust of concentrated power, and of power itself at levels.”
One vital reason that no presumption above applies generally (outside of litigation when the other party must bear an evidentiary burden) is that “the right of freely examining public characters and measures, and of free communication among the people thereon” is that those particular powers were “deemed” (by the people who founded this nation and wrote and ratified our Constitution and our Bill of Rights) to be “the only effectual guardian of every” American “right.”
The “citizenry is the final judge of the proper conduct of public business.” Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 495 (1975). Alexander Hamilton similarly emphasized that “[t]he two greatest securities” that “the people” have “for the faithful exercise of any delegated power” are “the restraints” imposed by “public opinion” and the public’s “opportunity of discovering with facility and clearness [official] misconduct” to facilitate officials’ “removal from office” or “punishment.” Federalist No. 70 (https://guides.loc.gov/federalist-papers/text-61-70#s-lg-box-wrapper-25493457).
The foregoing are the reasons that our Constitution's First Amendment expressly secures "the freedom of speech" and 'press" and "the right of the people" to "assemble" to secure our self-government.
Trump when signing executive orders, The people he appoints when following his agenda, DoJ lawyers, SCOTUS... and a surprise contribution by the DC court of appeals...
All acting with extreme disregard for the laws. Not trying to come up with novel perspectives and arguments on the laws, just coming up with bogus BS excuses that don't pass the sniff test, or often they just simply lie or even more simply ignore the clear reading of the law.
And then we get to Trump and his LOOOONG list of crimes and broken oaths.
So here is the question: At what point do we stop assuming there are crimes Trump is not committing?
Here are a few crimes Trump is credibly committing based upon publicly observed behavior:
Trump was a business partner with Epstein in the Child Sex Trafficking crime ring.
Trump is acting as an agent for Putin, perhaps because Putin (credibly) has evidence Trump committed serious crimes (Such as partnering with Epstein in the child sex trafficking crime).
Trump (or Putin in order to protect Trump as an asset) had Epstein killed in jail.
The 'assassination attempt' where his ear got scratched was faked, and the shooter was instructed to kill others, (after Trump was safely buried under Secret Service agents) in order to 'sell it'.
The reasons for the illegal (as determined by the specialist court) Tariffs was to give Trump leverage in extracting bribes, and to isolate / weaken the US per Putin's instructions.
The Reason Trump is acting so extreme is because he is afraid to go to jail (for so very many different crimes). The only way he stays free is if he keeps being president, until he dies.
Here is a clue, every time Trump uses the word "Hoax" we should consider it an admission of guilt.
While many of his crimes seem unlikely, such as stealing a huge number of classified (even top secret) files in a HUGE number of boxes of government files (which were also stolen), or staging an insurrection to stay in office, or working with Russia to steal an election (2016), we have massive evidence of all of these and their sloppy cover-ups, so why would we assume Trump is innocent of ANY of these credible crimes? Sure, if he was in a court of law, the burden of proof would be on the prosecution, but Trump is literally 'above' the law now with the DoJ being his personal tool and SCOTUS letting him do what he wants despite the law or the constitution.
At what point do we stop saying "Trump wouldn't do that..."? At what stage do we just assume 'did it' and move onto the next stage, where we figure how to use it, what to do about it.
Yes, it is good that courts are starting to call BS whenever Trump's minions speak in court, but as we saw with the DC circuit and SCOTUS, we cannot place our faith in the law or the constitution any more, unless backed up by pressure that cannot be ignored.
I was an Assistant Attorney General in Tennessee during the late 70s. My boss, who later served on the TN Supreme Court, made it clear to me that the AG would not defend agencies that violated the law, and would not defend laws that violated the state or federal constitution.
There is a legal basis for this. Rule 8.4 of the ABA Model Code of Professional Responsibility defines misconduct to include violating the Code. Comment 7 begins: "Lawyers holding public office assume legal responsibilities going beyond those of other citizens. " The actions of DOJ Dye describes in this post sound like violations of several of the parts of Rule 3.
See for yourself Here's a link to the Code: https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_contents/
Of course, lying has become SOP for the DoJ … and Trump Administration as a whole. And, sad to say, the Supreme Court as well: All six conservative justices, as nominees, promised that Roe v. Wade was law and binding precedent … until Barrett joined, and Roe magically became “egregious”.
Lies? In federal courts? Par for the course. What’s worse, the Supreme Court - by acceding to Trump every step of the way - quietly accepts same. And, on the shadow docket and without explanation, SCOTUS itself too often chooses to ignore the findings of the lower courts.
Hopefully, one day in the future, all of these arrogant, water-carrying little pricks in the doj will get disbarred - name em and shame em!