Friday, January 31, 2020
Thursday, January 30, 2020
Wednesday, January 29, 2020
Trump Impeachment Trial: What to Watch Ahead of Questioning Both Sides
Trump Impeachment Trial: What to Watch Ahead of Questioning Both Sides
“After days of sitting quietly as both sides of the case delivered their opening arguments, senators on Wednesday will be able to start questioning the impeachment managers and President Trump’s lawyers by submitting questions to Chief Justice John G. Roberts Jr., who will read them aloud.
The questioning phase will take place on Wednesday and Thursday, for up to 16 hours total. A vote on whether to hear witnesses in the trial is expected on Friday.
Senator Mitch McConnell, the majority leader, told Republicans during a closed-door meeting that he did not currently have the votes to block witnesses, according to a person familiar with the meeting. But behind the scenes, key Republicans said they were increasingly confident they could bring the trial to an end.“
Monday, January 27, 2020
Saturday, January 25, 2020
Friday, January 24, 2020
Thursday, January 23, 2020
In Impeachment Case, Schiff Accuses Trump of Trying ‘to Cheat’ in Election - The New York Times
""WASHINGTON — The House Democratic impeachment managers began formal arguments in the Senate trial on Wednesday, presenting a meticulous and scathing case for convicting President Trump and removing him from office on charges of abuse of power and obstruction of Congress.
At a news conference in Davos, Switzerland, where he was attending the World Economic Forum, Mr. Trump said that John R. Bolton, the former White House national security adviser, could not be allowed to testify because he “knows my thoughts on certain people and other governments, war and peace and different things — that’s a national security problem.”
The House impeachment managers, led by Representative Adam B. Schiff, opened their case for convicting President Trump. Republican senators criticized the tenor of the arguments.
“We are here today in this hallowed chamber, undertaking this solemn action for only the third time in history, because Donald J. Trump, the 45th president of the United States, has acted precisely as Hamilton and his contemporaries feared. President Trump solicited foreign interference in our democratic elections, abusing the power of his office to seek help from abroad to improve his re-election prospects at home. President Trump withheld two official acts to induce the Ukrainian leader to comply: a head of state meeting in the Oval Office and military funding. Both were of great consequence to Ukraine, and to our national interest and security, but one looms largest: President Trump withheld hundreds of millions of dollars in military aid to a strategic partner at war with Russia to secure foreign help with his re-election. In other words, to cheat.” “They’re on a crusade to destroy this man, and they don’t care what they destroy in the process of trying to destroy Donald Trump. I do care. So to my Democratic colleagues, you can say what you want about me. But I’m covering up nothing. I’m exposing your hatred of this president to the point that you would destroy the institution. Nobody would be saying this about a Democratic president, if a Republican House had done this.” “Right up until last night, evidence continues to be produced. The truth is going to come out. Indeed, the truth has already come out, but more and more of it will. And the only question is: Do you want to hear it now? Do you want to know the full truth now?”
“President Trump, believing he had escaped accountability for Russia meddling in the first election, and welcoming of it, asked the Ukrainian president to help him undermine the special counsel’s conclusion and help him smear a political opponent,” Mr. Schiff said.
The tenor of the House Democrats’ presentation on Tuesday also bothered some Democratic senators, who took issue with what they characterized as an overly accusatory tone by the impeachment managers. Senator Jon Tester, Democrat of Montana, told reporters that Mr. Nadler “could have chosen better words.”
Wednesday, January 22, 2020
Barr Once Contradicted Trump’s Claim That Abuse of Power Is Not Impeachable
Barr Once Contradicted Trump’s Claim That Abuse of Power Is Not Impeachable
In a memo for the Trump team during the Russia investigation, the attorney general wrote that presidents who misuse their authority are subject to impeachment.
WASHINGTON — Scholars have roundly rejected a central argument of President Trump’s lawyers that abuse of power is not by itself an impeachable offense. But it turns out that another important legal figure has contradicted that idea: Mr. Trump’s attorney general and close ally, William P. Barr.
In summer 2018, when he was still in private practice, Mr. Barr wrote a confidential memo for the Justice Department and Mr. Trump’s legal team to help the president get out of a problem. The special counsel, Robert S. Mueller III, was pressuring him to answer questions about whether he had illegally impeded the Russia investigation.
Mr. Trump should not talk to investigators about his actions as president, even under a subpoena, Mr. Barr wrote in his 19-page memo, which became public during his confirmation. Mr. Barr based his advice on a sweeping theory of executive power under which obstruction of justice laws do not apply to presidents, even if they misuse their authority over the Justice Department to block investigations into themselves or their associates for corrupt reasons.
But Mr. Barr tempered his theory with a reassurance. Even without the possibility of criminal penalties, he wrote, a check is in place on presidents who abuse their discretionary power to control the executive branch of government — impeachment.
The fact that the president “is answerable for any abuses of discretion and is ultimately subject to the judgment of Congress through the impeachment process means that the president is not the judge in his own cause,” he wrote.
He added, “The remedy of impeachment demonstrates that the president remains accountable under law for his misdeeds in office,” quoting from a 1982 Supreme Court case.
Mr. Barr has long embraced a maximalist philosophy of executive power. But in espousing the view that abuse of power can be an impeachable offense, he put himself squarely in the mainstream of legal thinking. Most constitutional scholars broadly agree that the constitutional term “high crimes and misdemeanors” for which an official may be impeached includes abuse of power.
But in a 110-page brief on Monday, Mr. Trump’s impeachment team — led by Pat A. Cipollone, the White House counsel and a former aide to Mr. Barr in the first Bush administration, and Mr. Trump’s personal lawyer Jay Sekulow — portrayed the article of impeachment claiming that Mr. Trump abused his power in the Ukraine affair as unconstitutional because he was not accused of an ordinary crime.
“House Democrats’ novel conception of ‘abuse of power’ as a supposedly impeachable offense is constitutionally defective,” they wrote. “It supplants the framers’ standard of ‘high crimes and misdemeanors’ with a made-up theory that the president can be impeached and removed from office under an amorphous and undefined standard of ‘abuse of power.’”
Contrary to what Mr. Barr wrote 20 months ago, the Trump defense team also insisted that the framers did not want Congress to judge whether presidents abused their discretion and made decisions based on improper motives.
“House Democrats’ conception of ‘abuse of power’ is especially dangerous because it rests on the even more radical claim that a president can be impeached and removed from office solely for doing something he is allowed to do, if he did it for the ‘wrong’ subjective reasons,” the Trump team wrote.
A spokeswoman for Mr. Barr declined to comment. A spokesman for Mr. Trump’s impeachment defense team did not respond to a request for comment about the tensions.
But Mr. Barr’s view was no passing thought. His 2018 memo emphasized that presidents who misuse their authority by acting with an improper motive are politically accountable, not just in elections but also via impeachment.
Between elections, “the people’s representatives stand watch and have the tools to oversee, discipline, and, if they deem appropriate, remove the president from office,” he wrote. “Under the framers’ plan, the determination whether the president is making decisions based on ‘improper’ motives or whether he is ‘faithfully’ discharging his responsibilities is left to the people, through the election process, and the Congress, through the impeachment process.”
The result of Mr. Barr’s main argument in 2018 and the Trump team’s theory in 2020 is identical: Both posited that facts were immaterial, both in a way that was convenient to counter the threat Mr. Trump faced at that moment.
If Mr. Barr’s obstruction of justice theory is correct — and many legal scholars reject it — then Mr. Mueller had no basis to scrutinize Mr. Trump’s actions that interfered with the Russia investigation.
Similarly, if the Trump impeachment team’s theory is correct, the Senate has no basis to subpoena documents or call witnesses. The lawyers are implying that even if Mr. Trump did abuse his power to conduct foreign policy by trying to coerce Ukraine into announcing investigations that could help him in the 2020 election, the Senate should acquit Mr. Trump anyway.
Another member of Mr. Trump’s legal team, Alan Dershowitz, a professor emeritus at Harvard Law School and criminal defense lawyer, is expected to make a presentation to the Senate trial this week laying out in detail the theory that abuses of power are not impeachable without an ordinary criminal violation.
Critics of Mr. Dershowitz’s arguments have pointed to the seeming tension with comments he made in 1998, when he did not have a client facing impeachment for abuse of power: “If you have somebody who completely corrupts the office of president and who abuses trust and who poses great danger to our liberty, you don’t need a technical crime.”
In an interview this week, Mr. Dershowitz argued that his position now was not inconsistent with what he said in 1998, pointing to his use then of the phrase “technical crime” and saying that he is arguing today that impeachment requires “crimelike” conduct.
Mr. Dershowitz went further on Tuesday, saying on Twitter that he had not thoroughly researched the question in 1998 but recently has done so. “To the extent therefore that my 1998 off-the-cuff interview statement suggested the opposite,” he wrote, “I retract it.”
Republicans Block Subpoenas for New Evidence as Impeachment Trial Begins
Republicans Block Subpoenas for New Evidence as Impeachment Trial Begins
Listen to ‘The Daily’: The Moderates’ Impeachment Moment
How just a few Republican senators had a key role in determining the scope, and the likely future, of the trial of President Trump.
Tuesday, January 21, 2020
How to Convince a White Realtor You’re Middle Class
How to Convince a White Realtor You’re Middle Class
Monday, January 20, 2020
‘Constitutional Nonsense’: Trump’s Impeachment Defense Defies Legal Consensus - The New York Times
"WASHINGTON — As President Trump’s impeachment trial opens, his lawyers have increasingly emphasized a striking argument: Even if he did abuse his powers in an attempt to bully Ukraine into interfering in the 2020 election on his behalf, it would not matter because the House never accused him of committing an ordinary crime.
Their argument is widely disputed. It cuts against the consensus among scholars that impeachment exists to remove officials who abuse power. The phrase “high crime and misdemeanors” means a serious violation of public trust that need not also be an ordinary crime, said Frank O. Bowman III, a University of Missouri law professor and the author of a recent book on the topic.
“This argument is constitutional nonsense,” Mr. Bowman said. “The almost universal consensus — in Great Britain, in the colonies, in the American states between 1776 and 1787, at the Constitutional Convention and since — has that been that criminal conduct is not required for impeachment.”
But the argument is politically convenient for Mr. Trump. For any moderate Republican senator who may not like what the facts already show about his campaign of pressure on Ukraine, the theory provides an alternative rationale to acquit the president.
Indeed, if it were true, then there would also be no reason to call witnesses like John R. Bolton, Mr. Trump’s former national security adviser, because what he and others know about Mr. Trump’s motivations and intentions in his Ukraine dealings would not affect the outcome of the trial.
Mr. Trump’s legal team hammered away at the argument in its 110-page brief submitted to the Senate on Monday. “House Democrats’ newly invented ‘abuse of power’ theory collapses at the threshold because it fails to allege any violation of law whatsoever,” the president’s lawyers wrote.
Many legal scholars say senators should not take this argument seriously. They point, among other things, to evidence that for centuries before the American Revolution, the British Parliament impeached officials for “high crimes and misdemeanors” that constituted abuses of power but were not indictable offenses. The pattern informed the framers of the Constitution, who echoed that concept.
One precedent — a high-profile case against a former British governor-general in India named Warren Hastings accused of mismanagement, mistreatment of locals and military misconduct — unfolded during the drafting and ratification of the Constitution and was reported in American newspapers.
His chief prosecutor, the famous parliamentarian Edmund Burke, argued that Mr. Hastings’s actions violated the public trust even though they were not indictable. (Mr. Hastings was acquitted, but only many years later.)
The original draft of the Constitution had made only treason and bribery a basis for impeachment. But according to James Madison’s notes of the Constitutional Convention, George Mason brought up the Hastings case and proposed expanding the definition of impeachment to cover something like it. After rejecting the term “maladministration” as too broad, the convention participants decided to add the English term “high crimes and misdemeanors.”
Mr. Bowman — whose scholarship on impeachment law is cited in a footnote in the Trump legal team brief — called the arguments in that brief “a well-crafted piece of sophistry that cherry-picks sources and ignores inconvenient history and precedent.” For example, he noted, it makes no mention of how the Hastings case involved allegations of abuses of power that were not indictable crimes.
Scholars pointed to other major landmarks. In 1788, as supporters of the Constitution were urging states to ratify the document, Alexander Hamilton described impeachable conduct in one of the Federalist Papers as “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust,” and “political” offenses that injure society.
Mr. Hamilton also wrote that impeachments would differ from common trials in part because prosecutors and judges would not be as limited “in delineation of the offense.”
Critics of the Trump team’s theory have also noted that when the Constitution was drafted, hardly any federal criminal laws had been written. And several early impeachment proceedings — including against a judge who got drunk while presiding over cases — did not involve indictable offenses.
“It is just quite clear that the commission of a crime is neither necessary nor sufficient for an act to be impeachable,” said John Mikhail, a Georgetown University law professor. He portrayed the Trump legal team’s argument as not merely wrong, but as not even worthy of being deemed serious.
But Alan Dershowitz, a leading proponent of the theory, disagreed. An emeritus Harvard Law School professor and a celebrated criminal defense lawyer, he has joined Mr. Trump’s legal team and is preparing a presentation about the idea that he said he expects to make to the Senate on Friday.
Among other things, Mr. Dershowitz said in an interview, he interpreted Mr. Hamilton to be saying not that any violation of the public trust is impeachable, but that only crimes that are also violations of the public trust meet that standard.
He also said that there were some common-law crimes at the time of the ratification of the Constitution, and that the framers expected Congress to eventually enact criminal laws that could serve as the basis for impeachments.
Mr. Dershowitz said he intended to model his presentation on an argument put forward at the 1868 impeachment trial of President Andrew Johnson by his chief defense counsel, Benjamin Robbins Curtis, a former Supreme Court associate justice.
Mr. Johnson was saved from conviction and removal when the vote fell one short of the necessary supermajority. Mr. Curtis had argued that Mr. Johnson was not accused of committing a legitimate crime, and that removing him absent one would subvert the constitutional structure and make impeachment a routine tool of political struggle.
But other legal scholars, like Laurence Tribe, a constitutional specialist at Harvard Law School and an outspoken critic of Mr. Trump, have argued that Mr. Dershowitz is overreading and misrepresenting this aspect of the Johnson trial, especially against the backdrop of other evidence about the original understanding of “high crimes and misdemeanors” and the range of factors that went into Mr. Johnson’s narrow acquittal.
In an opinion article in The Washington Post, Mr. Tribe accused Mr. Trump’s legal team of using “bogus legal arguments to mislead the American public or the senators weighing his fate.”
From one perspective, the argument might not matter. Mr. Bowman noted that while the House article refers to no criminal statute, the conduct described in the abuse-of-power one “plainly draws from” the crime of soliciting a bribe.
(The Government Accountability Office has also concluded that the Trump administration’s freezing of a congressionally appropriated military aid package to Ukraine amounted to an illegal impoundment of funds, but there are no criminal penalties associated with violating that law.)
But Mr. Dershowitz said that if the House had the evidence and the votes to charge Mr. Trump with bribery, then it needed to say so explicitly.
Some of Mr. Dershowitz’s critics have questioned whether he really believes what he is now saying, noting that in 1998, during the Clinton impeachment, he said: “It certainly doesn’t have to be a crime, if you have somebody who completely corrupts the office of president and who abuses trust and who poses great danger to our liberty, you don’t need a technical crime.”
Mr. Dershowitz argued that his position today was not inconsistent with what he said in 1998, pointing to his use of the phrase “technical crime” and saying that he is arguing today that there needs to be “crime-like” conduct. He also said he did not know about Mr. Curtis’s 1868 argument during the Clinton impeachment era, and reading it had affected his thinking.
Still, he acknowledged that his interpretation is an outlier.
“My argument will be very serious and very scholarly,” Mr. Dershowitz said. “The fact that other scholars disagree, that’s for the Senate to consider. There is a division — most of the scholars disagree with me. I think they’re wrong.”
But Mr. Mikhail said Mr. Dershowitz and the Trump legal team were wrong, and he noted that many senators of both parties went to law school.
“These are very smart, legally informed people,” he said. “They understand the law. They can certainly see through ruses and efforts to distract and divert.”
‘Constitutional Nonsense’: Trump’s Impeachment Defense Defies Legal Consensus - The New York Times
Sunday, January 19, 2020
Friday, January 17, 2020
Injustice on Repeat By Michelle Alexander. From mass incarceration to mass deportation, our nation remains in deep denial.
Injustice on Repeat
From mass incarceration to mass deportation, our nation remains in deep denial.
Ten years have passed since my book, “The New Jim Crow,” was published. I wrote it to challenge our nation to reckon with the recurring cycles of racial reform, retrenchment and rebirth of caste-like systems that have defined our racial history since slavery. It has been an astonishing decade. Everything and nothing has changed.
When I was researching and writing the book, Barack Obama had not yet been elected president of the United States. I was in disbelief that our country would actually elect a black man to be the leader of the so-called free world. As the election approached, I felt an odd sense of hope and dread. I hoped against all reason that we would actually do it. But I also knew that, if we did, there would be a price to pay.
Everything I knew through experience and study told me that we as a nation did not fully understand the nature of the moment we were in. We had recently birthed another caste system — a system of mass incarceration — that locked millions of poor people and people of color in literal and virtual cages.
Our nation’s prison and jail population had quintupled in 30 years, leaving us with the highest incarceration rate in the world. A third of black men had a felony record — due in large part to a racially biased, brutal drug war — and were relegated to a permanent second-class status. Tens of millions of people in the United States had been stripped of basic civil and human rights, including the right to vote, the right to serve on juries and the right to be free of legal discrimination in employment, housing, education and basic public benefits.
Nevertheless, our nation remained in deep denial that a new caste system even existed, and most of us — even those who cared deeply about racial justice — did not seem to understand that powerful racial dynamics and political forces were at play that made much of our racial progress illusory. We had not faced our racial history and could not tell the truth about our racial present, yet growing numbers of Americans wanted to elect a black president and leap into a “colorblind” future.
I was right to worry about the aftermath of Obama’s election. After he was inaugurated, our nation was awash in “post-racialism.” Black History Month events revolved around “how far we’ve come.” Many in the black community and beyond felt that, if Obama could win the presidency, anything was possible. Few people wanted to hear the message I felt desperate to convey: Despite appearances, our nation remains trapped in a cycle of racial reform, backlash and reformation of systems of racial and social control.
Things have changed since then. Donald Trump is president of the United States. For many, this feels like whiplash. After eight years of Barack Obama — a man who embraced the rhetoric (though not the politics) of the civil rights movement — we now have a president who embraces the rhetoric and the politics of white nationalism. This is a president who openly stokes racial animosity and even racial violence, who praises dictators (and likely aspires to be one), who behaves like a petulant toddler on Twitter, and who has a passionate, devoted following of millions of people who proudly say they want to “make America great again” by taking us back to a time that we’ve left behind.
We are now living in an era not of post-racialism but of unabashed racialism, a time when many white Americans feel free to speak openly of their nostalgia for an age when their cultural, political and economic dominance could be taken for granted — no apologies required. Racial bigotry, fearmongering and scapegoating are no longer subterranean in our political discourse; the dog whistles have been replaced by bullhorns. White nationalist movements are operating openly online and in many of our communities; they’re celebrating mass killings and recruiting thousands into their ranks.
White nationalism has been emboldened by our president, who routinely unleashes hostile tirades against black and brown people — calling Mexican migrants criminals, “rapists” and “bad people,” referring to developing African nations as “shithole countries” and smearing a district of the majority-black city of Baltimore as a “disgusting, rat and rodent infested mess.” Millions of Americans are cheering, or at least tolerating, these racial hostilities.
Contrary to what many people would have us believe, what our nation is experiencing is not an “aberration.” The politics of “Trumpism” and “fake news” are not new; they are as old as the nation itself. The very same playbook has been used over and over in this country by those who seek to preserve racial hierarchy, or to exploit racial resentments and anxieties for political gain, each time with similar results.
Back in the 1980s and ’90s, Democratic and Republican politicians leaned heavily on racial stereotypes of “crack heads,” “crack babies,” “superpredators” and “welfare queens” to mobilize public support for the War on Drugs, a get-tough movement and a prison-building boom — a political strategy that was traceable in large part to the desire to appeal to poor and working-class white voters who had defected from the Democratic Party in the wake of the civil rights movement.
Today, the rhetoric has changed, but the game remains the same. Public enemy No. 1 in the 2016 election was a brown-skinned immigrant, an “illegal,” a “terrorist” or a “caravan” full of people who want to take your job, rape your daughter or commit an act of terrorism. As Trump put it: “When Mexico sends its people, they’re not sending their best. … They’re sending people that have lots of problems, and they’re bringing those problems. … They’re bringing drugs. They’re bringing crime. They’re rapists.”
He promised to solve this imaginary crisis through mass deportation and building a wall between the United States and Mexico. He also insisted that his political opponent, Hillary Clinton, wanted “millions of illegal immigrants to come in and take everybody’s jobs.” And he blamed domestic terroristic attacks in New Jersey and New York on “our extremely open immigration system,” which, he argued, allows Muslim terrorists into our country.
The fact that Trump’s claims were demonstrably false did not impede his rise, just as facts were largely irrelevant at the outset of the War on Drugs. It didn’t matter back then that studies consistently found that whites were equally likely, if not more likely, than people of color to use and sell illegal drugs. Black people were still labeled the enemy. Nor did it matter, when the drug war was taking off, that nearly all of the sensationalized claims that crack cocaine was some kind of “demon drug,” drastically more harmful than powder cocaine, were false or misleading. Black people charged with possession of crack in inner cities were still punished far more harshly than white people in possession of powder cocaine in the suburbs. And it didn’t matter that African-Americans weren’t actually taking white people’s jobs or college educations in significant numbers through affirmative action programs.
Getting tough on “them” — the racially defined “others” who could easily be used as scapegoats and cast as the enemy — was all that mattered. Facts were treated as largely irrelevant then. As they are now.
Fortunately, a growing number of scholars and activists have begun to connect the dots between mass incarceration and mass deportation in our nation’s history and current politics. The historian Kelly Lytle Hernández, in her essay “Amnesty or Abolition: Felons, Illegals, and the Case for a New Abolition Movement,” chronicles how these systems have emerged as interlocking forms of social control that relegate “aliens” and “felons” to a racialized caste of outsiders. In recent decades, the system of mass incarceration has stripped away from millions of U.S. citizens basic civil and human rights until their status mirrors (or dips below) that of noncitizen immigrants within the United States. This development has coincided with the criminalization of immigration in the United States, resulting in a new class of “illegal immigrants” and “aliens” who are viewed and treated like “felons” or “criminals.” Immigration violations that were once treated as minor civil infractions are now crimes. And minor legal infractions, ranging from shoplifting to marijuana possession to traffic violations, now routinely prompt one of the nation’s most devastating sanctions — deportation.
The story of how our “nation of immigrants” came to deport and incarcerate so many for so little, Hernández explains, is a story of race and unfreedom reaching back to the era of emancipation. If we fail to understand the historical relationship between these systems, especially the racial politics that enabled them, we will be unable to build a truly united front that will prevent the continual re-formation of systems of racial and social control.
In my experience, those who argue that the systems of mass incarceration and mass deportation simply reflect sincere (but misguided) efforts to address the real harms caused by crime, or the real challenges created by surges in immigration, tend to underestimate the corrupting influence of white supremacy whenever black and brown people are perceived to be the problem. “Between me and the other world, there is ever an unasked question,” W.E.B. Du Bois famously said back in 1897: “How does it feel to be a problem?” White people are generally allowed to have problems, and they’ve historically been granted the power to define and respond to them. But people of color — in this “land of the free” forged through slavery and genocide — are regularly viewed and treated as the problem.
This distinction has made all the difference. Once human beings are defined as the problem in the public consciousness, their elimination through deportation, incarceration or even genocide becomes nearly inevitable.
White nationalism, at its core, reflects a belief that our nation’s problems would be solved if only people of color could somehow be gotten rid of, or at least better controlled. In short, mass incarceration and mass deportation have less to do with crime and immigration than the ways we’ve chosen to respond to those issues when black and brown people are framed as the problem.
As Khalil Gibran Muhammad points out in “The Condemnation of Blackness,” throughout our nation’s history, when crime and immigration have been perceived as white, our nation’s response has been radically different from when those phenomena have been defined as black or brown. The systems of mass incarceration and mass deportation may seem entirely unrelated at first glance, but they are both deeply rooted in our racial history, and they both have expanded in part because of the enormous profits to be made in controlling, exploiting and eliminating vulnerable human beings.
It is tempting to imagine that electing a Democratic president or more Democratic politicians will surely fix the crises in our justice systems and our democracy. To be clear, removing Trump from office is necessary and urgent; but simply electing more Democrats to office is no guarantee that our nation will break its habit of birthing enormous systems of racial and social control. Indeed, one of the lessons of recent decades is these systems can grow and thrive even when our elected leaders claim to be progressive and espouse the rhetoric of equality, inclusion and civil rights.
President Bill Clinton, who publicly aligned himself with the black community and black leaders, escalated a racially discriminatory drug war in part to avoid being cast by conservatives as “soft on crime.” Similarly, President Obama publicly preached values of inclusion and compassion toward immigrants, yet he escalated the mass detention and deportation of noncitizens.
Obama claimed that his administration was focused on deporting: “Felons, not families. Criminals, not children. Gang members, not a mom who’s working hard to provide for her kids.” However, reports by The New York Times and the Marshall Project revealed that, despite Obama’s rhetoric, a clear majority of immigrants detained and deported during his administration had no criminal record, except minor infractions, including traffic violations, and posed no threat.
Equally important is the reality that “felons” have families. And “criminals” are often children or teenagers. The notion that, if you’ve ever committed a crime, you’re permanently disposable is the very idea that has rationalized mass incarceration in the United States.
None of this is to minimize the real progress that has occurred on many issues of race and criminal justice during the past decade. Today, there is bipartisan support for some prison downsizing, and hundreds of millions of philanthropic dollars have begun to flow toward criminal justice reform. A vibrant movement led by formerly incarcerated and convicted people is on the rise — a movement that has challenged or repealed disenfranchisement laws in several states, mobilized in support of sentencing reform and successfully organized to “ban the box” on employment applications that discriminate against those with criminal records by asking the dreaded question: “Have you ever been convicted of a felony?”
Activism challenging police violence has swept the nation — inspired by the courageous uprisings in Ferguson, Mo., the viral videos of police killings of unarmed black people, and #BlackLivesMatter. Promising movements for restorative and transformative justice have taken hold in numerous cities. Campaigns against cash bail have gained steam. Marijuana legalization has sped across the nation, with more than 25 states having partly or fully decriminalized cannabis since 2012.
And “The New Jim Crow,” which some predicted would never get an audience, wound up spending nearly 250 weeks on the New York Times best-seller list and has been used widely by faith groups, activists, educators and people directly effected by mass incarceration inside and outside prisons. Over the past 10 years, I’ve received thousands of letters — and tens of thousands of emails — from people in all walks of life who have written to share how the book changed their lives or how they have used it to support consciousness-raising or activism in countless ways.
Everything has changed. And yet nothing has.
The politics of white supremacy, which defined our original constitution, have continued unabated — repeatedly and predictably engendering new systems of racial and social control. Just a few decades ago, politicians vowed to build more prison walls. Today, they promise border walls.
The political strategy of divide, demonize and conquer has worked for centuries in the United States — since the days of slavery — to keep poor and working people angry at (and fearful of) one another rather than uniting to challenge unjust political and economic systems. At times, the tactics of white supremacy have led to open warfare. Other times, the divisions and conflicts are less visible, lurking beneath the surface.
The stakes now are as high as they’ve ever been. Nearly everyone seems aware that our democracy is in crisis, yet few seem prepared to reckon with the reality that removing Trump from office will not rid our nation of the social and political dynamics that made his election possible. No issue has proved more vexing to this nation than the issue of race, and yet no question is more pressing than how to overcome the politics of white supremacy — a form of politics that not only led to an actual civil war but that threatens our ability ever to create a truly fair, just and inclusive democracy.
We find ourselves in this dangerous place not because something radically different has occurred in our nation’s politics, but because so much has remained the same.
The inconvenient truth is that racial progress in this country is always more complex and frequently more illusory than appears at first glance. The past 10 years has been a case in point. Our nation has swung sharply from what Marc Mauer memorably termed “a race to incarcerate” — propelled by bipartisan wars on “drugs” and “crime” — to a bipartisan commitment to criminal justice reform, particularly in the area of drug policy. And yet, it must be acknowledged that much of the progress occurred not because of newfound concern for people of color who have been the primary targets of the drug war, but because drug addiction, due to the opioid crisis, became perceived as a white problem and wealthy white investors became interested in profiting from the emerging legal cannabis industry.
Some of the reversals in political opinion have been quite striking. For example, John Boehner, a former Republican speaker of the House of Representatives, stated in 2011 that he was “unalterably opposed to decriminalizing marijuana” but by the spring of 2018 he had joined the board of a cannabis company.
Growing sympathy for illegal drug users among whites and conservatives, and concern regarding the expense of mass imprisonment, helped to make possible a bipartisan consensus in support of the Trump administration’s First Step Act — leading to the early release of more than 3,000 people from federal prisons for drug offenses. This development, which benefits people of color subject to harsh and biased drug sentencing laws, is difficult to characterize as major progress toward ending mass incarceration given that Trump continued to unleash racially hostile tirades against communities of color and his administration vowed to reinstate the federal death penalty. He also rescinded a number of significant reforms adopted by Obama and expanded the use of private prisons.
Obama also has a complicated legacy with respect to criminal justice reform. Obama was the first sitting president to visit a federal correctional facility, the first to oversee a drop in the federal prison population in more than 30 years, and he granted clemency to nearly 2,000 people behind bars — the highest total for any president since Harry Truman. His administration enacted significant policy changes, including legislation reducing sentencing disparities involving crack and powder cocaine, a phasing out of federal contracts with private prisons, and limitations on the transfer of military equipment to local police departments.
And yet it sometimes appeared that Obama was reluctant to acknowledge the depth and breadth of the structural changes required to address police violence and the prevailing systems of racial and social control.
For example, when black Harvard professor Henry Louis Gates Jr. was arrested in his own home for no reason, Obama responded to the national furor and media frenzy by inviting Gates and the arresting officer to a “beer summit” at the White House to work things out over drinks and peanuts, as though racial profiling is little more than an interpersonal dispute that can be resolved through friendly dialogue.
Most troubling, the modest criminal justice reforms that were achieved during the Obama administration coincided with the expansion of the system of mass deportation. Although the administration agreed to phase out federal contracts for private prisons, it made enormous investments in private detention centers for immigrants, including the granting of a $1 billion contract to Corrections Corporation of America, the nation’s largest prison company, to build a detention facility for women and children asylum seekers from Central America.
Immigrant detention centers were exempted from the phaseout plan for private prisons, which meant that only about a quarter of the population held in U.S. private facilities was affected by the plan. The caging of immigrants for profit was allowed to continue without restraint.
The reality is that, during both the Obama and Clinton years, highly racialized and punitive systems thrived under liberal presidents who were given the benefit of the doubt by those who might otherwise have been critics. Obama and Clinton’s public displays of affection for communities of color, the egalitarian values they preached and their liberal or progressive stances on other issues helped to shield these vast systems of control from close scrutiny.
Many of us saw these presidents as “good people” with our best interests at heart, doing what they could to navigate a political environment in which only limited justice is possible. All of these factors played a role, but one was key: These systems grew with relatively little political resistance because people of all colors were willing to tolerate the disposal of millions of individuals once they had been labeled criminals in the media and political discourse. This painful reality suggests that ending our nation’s habit of creating enormous systems of racial and social control requires us to expand our sphere of moral concern so widely that none of us, not even those branded criminals, can be viewed or treated as disposable.
If there is any silver lining to be found in the election of Donald Trump to the presidency, it is that millions of people have been inspired to demonstrate solidarity on a large scale across the lines of gender, race, religion and class in defense of those who have been demonized and targeted for elimination. Trump’s blatant racial demagogy has awakened many from their “colorblind” slumber and spurred collective action to oppose the Muslim ban and the border wall, and to create sanctuaries for immigrants in their places of worship and local communities.
Many who are engaged in this work are also deeply involved in, or supportive of, movements to end police violence and mass incarceration. Growing numbers of people are beginning to see how the politics of white supremacy have resurfaced again and again, leading to the creation and maintenance of new systems of racial and social control. A politics of deep solidarity is beginning to emerge — the only form of politics that holds any hope for our collective liberation.
The centuries-long struggle to birth a truly inclusive, egalitarian democracy — a nation in which every voice and every life truly matters — did not begin with us and it will not end with us. The struggle is as old as the nation itself and the birth process has been painful, to say the least. My greatest hope and prayer is that we will serve as faithful midwives in our lifetimes and do what we can to make America, finally, what it must become.
Michelle Alexander is a civil rights lawyer and advocate, legal scholar and author of the 10th anniversary edition of “The New Jim Crow: Mass Incarceration in the Age of Colorblindness,” from which this essay is adapted.“