Politics
Opinion: The election shredded the rule of law
Being elected president truly is a get-out-of-jail-free card for Donald Trump, but the greater concern should be for what this means for the rule of law in this country. On Friday, New York Judge Juan M. Merchan upheld Trump’s 34 felony convictions for falsifying business records. Merchan set sentencing for Friday, Jan. 10, and indicated that he would likely take the very unusual step of unconditionally discharging Trump’s sentence. In plain English, this means that Trump will face absolutely no legal consequences from his convictions — not prison, not probation, not a fine.
Trump’s lawyers are trying to halt even the signaled unconditional discharge while they appeal. But Merchan realistically has no alternative.
A prison sentence is incompatible with Trump serving as president of the United States. The appellate courts surely would overturn a prison sentence, holding that, under the Constitution, being elected president preempts the ability of a state to interfere with that by imprisonment. Trump could not perform his constitutional duties as president from a prison cell in New York. Nor would it make sense for a state judge to put the president on probation and supervise his actions with the threat of revocation and imprisonment.
Trump faced up to four years in prison for the crimes for which he was convicted in New York. A study by the New York Times found that of 30 convictions for falsifying business records in Manhattan in the last decade, no other defendant received an unconditional discharge. All but five received sentences such as jail and prison time, probation and fines; some who entered into plea deals received sentences involving specific conditions, such as paying restitution or completing community service.
Indeed, Michael Cohen, the person who arranged the payment of the hush money that led to Trump’s conviction, was sentenced to three years in prison and served 13 months in custody. Trump, who the jury found orchestrated and was responsible for authorizing the payments, will never serve a day in jail.
But this is only a part of Trump’s get-out-of-jail-free benefit. He was indicted in the U.S. District Court for the District of Columbia for his acts in attempting to undermine the results of the 2020 presidential election. Had Trump lost in November, he would have been tried and faced a prison sentence if convicted. But the charges were dismissed after Trump was elected because of a Justice Department rule that a sitting president cannot be prosecuted.
This also was the basis for dismissing the indictment against Trump in federal court in Florida for improper handling of classified documents. The charges against him were serious: evidence tampering, willfully retaining national defense information and lying to investigators. If convicted, these charges also would likely have led to a significant prison sentence.
And it must be remembered that last summer the Supreme Court, in Trump vs. United States, ruled that Trump could not be prosecuted for anything he did using official powers granted to the president by the Constitution or a statute. This led to the dropping of some charges against him. The court’s decision provides protection for any official acts taken during his first term, and he assumes office knowing he faces little possibility of prosecution for any illegal acts in the next four years.
It is impossible to reconcile all of this with the most basic notion of the rule of law, the core of which is that no one, not even a president or former president, is above the law. It is captured in the idea, uttered from the beginning of American history, that we are “a country of laws, not people.” The last thing that the framers of the Constitution wanted was to create a president who could not be held accountable for breaking the law.
Trump still faces civil liability for some of his past conduct. Last week, a federal court of appeals upheld a $5-million verdict against Trump for his sexual assault of E. Jean Carroll. Another jury awarded Carroll $83.3 million against Trump for defamation. That verdict is now on appeal. Also, Trump is appealing a $355-million verdict for business fraud against him and his company.
But none of these civil suits involve the crimes he committed or was charged with. Nor does there seem any way to ever punish him for those felonies.
The assault on the rule of law is also reflected in Trump’s promise to pardon those who participated in the Jan. 6, 2021, attack at the Capitol. So far, more than 1,500 individuals have been charged with federal crimes in connection to Jan. 6. Most of those were misdemeanors, such as trespassing, but hundreds have pleaded guilty to or were convicted of assault or other felonies. The conduct of all was illegal and unconscionable in a democracy, yet they could be absolved of criminal liability.
It is perhaps too easy to ignore that this situation is unique in our republic’s history. Never before has a convicted felon become president. Never before has election as president meant the dismissal of criminal charges. It flouts the very essence of the rule of law that election as president could be a get-out-of-jail-free card.
Erwin Chemerinsky, a contributing writer to Opinion, is dean of the UC Berkeley Law School.
Politics
Why Does Trump Want Greenland?
President-elect Donald J. Trump’s attention returned Tuesday to an idea that has fascinated him for years: acquiring Greenland for the United States. In a news conference on Tuesday, he refused to rule out using military or economic force to take the territory from Denmark, a U.S. ally.
“We need Greenland for national security purposes,” he said, arguing that Denmark should give it up to “protect the free world.” He threatened to impose tariffs on Denmark if it did not.
Earlier in the day, Mr. Trump wrote on social media that the potential American acquisition of the Arctic territory “is a deal that must happen” and uploaded photos of his eldest son, Donald Trump Jr., who was visiting Greenland.
“MAKE GREENLAND GREAT AGAIN,” the president-elect added.
After the news conference, Denmark sharply rebuked the proposal, saying that the world’s largest island is not for sale.
During his first term, Mr. Trump urged his aides to explore ways to purchase Greenland, a semiautonomous territory known for its natural resources and strategical location for new shipping routes that can open up as the Arctic ice melts. A few weeks ago, Mr. Trump reignited the conversation through social media, asserting that “the ownership and control of Greenland is an absolute necessity.”
Greenland’s vast ice sheets and glaciers are quickly retreating as the Earth warms through accelerating climate change. That melting of ice could allow drilling for oil and mining for minerals such as copper, lithium, nickel and cobalt. Those mineral resources are essential to rapidly growing industries that make wind turbines, transmission lines, batteries and electric vehicles.
Because of higher temperatures, an estimated 11,000 square miles of Greenland’s ice sheets and glaciers have already melted in the past three decades, an area roughly the size of Massachusetts.
In 2023, the Danish government published a report that detailed Greenland’s potential as a rich deposit of valuable minerals. The Arctic island has “favorable conditions for the formations of ore deposition, including many of the critical raw minerals.”
The melting ice in the Arctic is also opening up a new strategic asset in geopolitics: shorter and more efficient shipping routes. Navigating through the Arctic Sea from Western Europe to East Asia, for example, is about 40 percent shorter compared to sailing through the Suez Canal. Ship traffic in the Arctic has already surged 37 percent over the past decade, according to a recent Arctic Council report.
China has shown significant interest in a new route through the Arctic, and in November, China and Russia agreed to work together to develop Arctic shipping routes.
Mr. Trump has repeatedly called climate change a “hoax.” But one of his former national security advisers, Robert C. O’Brien, suggested that its consequences are one of the reasons that Mr. Trump is interested in making Greenland a U.S. territory.
“Greenland is a highway from the Arctic all the way to North America, to the United States,” he told Fox News. “It’s strategically very important to the Arctic, which is going to be the critical battleground of the future because as the climate gets warmer, the Arctic is going to be a pathway that maybe cuts down on the usage of the Panama Canal.”
Politics
Outgoing WH official calls for US to bolster cybersecurity workforce by hiring non-degree holders
The White House’s outgoing cyber czar, Harry Coker, called for three key things to meet the growing threat of digital attacks: more funding, deregulation and opening up cyber jobs to those without college degrees.
As adversaries like Iran, China and Russia lob near-constant attacks on the U.S. digital infrastructure, “we have to prioritize cybersecurity within federal budgets” President Joe Biden’s national cyber director said at an event with the Foundation for Defense of Democracies in Washington, D.C.
“I would love for the incoming administration, or any administration, to recognize the priority of cybersecurity,” Coker said.
He added that he understands the U.S. is in a “tough budget situation.”
“I get that, and I support making progress towards reducing the deficit, but we have to prioritize cybersecurity within our current budgets,” he said.
At the same time, the Biden appointee railed against “duplicative federal regulation” and said he’d heard from those working to protect the nation’s online infrastructure that they spend “a staggering 30 to 50%” of their time working to comply with regulation, rather than ensuring protection from hacks.
“Armed with the industry’s call to streamline, we worked with Congress to write bipartisan legislation that would bring all stakeholders, including independent regulators, to the table to advance the regulatory harmonization,” he went on.
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“Many of us were disappointed that this has not become law yet, but we have laid the groundwork for the next administration in Congress to do the right thing for our partners in the private sector.”
His urging comes as the U.S. is grappling with the fallout of one of China’s biggest attacks on American infrastructure in history, dubbed Salt Typhoon.
A Chinese intelligence group infiltrated nine U.S. telecommunications giants and gained access to the private text messages and phone calls of Americans, including senior government officials and prominent political figures.
The Salt Typhoon hackers also gained access to an exhaustive list of phone numbers the Justice Department had wiretapped to monitor people suspected of espionage, granting them insight into which Chinese spies the U.S. had caught onto and which they had missed.
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China was also behind a “major” hack of the Treasury Department in December, gaining access to unclassified documents and the workstations of government employees.
And earlier this year, Commerce Secretary Gina Raimondo’s communications were intercepted by Chinese intelligence, just as she was making determinations about new export controls on semiconductors and other key technologies. The same hacking group also targeted officials at the State Department and members of Congress.
Amid this onslaught of attacks, Coker said the cyber industry is suffering a recruitment issue.
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“Today there are nearly 500,000 open cyber jobs in this great nation,” he said.
“The federal government is leading by example… removing federal employee and contractor hiring from a focus on college degrees to a focus on what we’re really after: skills.
“When we do away with the four-year college degree requirement, we expand our talent pool,” Coker went on. “Many Americans don’t have the time or the means to go to college for four years, but they can do it for two years or less.”
Politics
Opinion: What antiabortion activists want next
The state of Texas filed a major lawsuit on Dec. 12 against a New York doctor who mailed abortion pills to a Collin County, Texas, woman, arguing that the doctor was practicing medicine without a Texas license and violating the state’s abortion ban. The suit raises messy legal questions about whether one state can haul a doctor abiding by the law in another state into its courts, or enforce a judgment if it wins. More than that, however, the suit is a window into the next battlefield over abortion rights — and how abortion pills and telemedicine are reshaping the politics of abortion in America.
The antiabortion movement’s endgame is establishing fetal personhood — the idea that life and constitutional rights begin at the moment sperm fertilizes an egg. Fetal personhood was referenced in the 2024 GOP platform and embraced in a strategy endorsed by most leading antiabortion groups. It has been a focal point of the movement’s efforts for 50 years.
But with blue states and many red states reaffirming a right to abortion, fetal personhood doesn’t seem like it’s going to come to pass anytime soon. In the meantime, abortion opponents have set their sights on shutting down access to abortion pills — mifepristone and misoprostol. The Supreme Court rebuffed one Texas lawsuit targeting mifepristone in June (on the basis of standing), but as the new case indicates, that hasn’t discouraged the antiabortion movement.
Here’s why: Medication abortion, also called chemical abortion, has made it difficult to enforce abortion bans in the states where they exist — indeed, even with Roe vs. Wade reversed, studies show an increase in the number of abortions performed annually in the U.S. Abortion pills also make it harder to frighten doctors and harder to stigmatize the termination of pregnancy.
When all abortions were surgical, the procedure had to take place in bricks-and-mortar facilities. The clinics became targets for protest and sometimes violence and vandalism. Abortion pills, however, can be prescribed remotely, through a telehealth consultation, and they are taken at home very early in a pregnancy. Pills make abortion more private, distancing patients from clinic protests, and their effects may resemble miscarriage, which already occurs in up to 20% of known pregnancies — so much so that physicians have no reliable way of telling the symptoms apart. Along with backlash against the reversal of Roe, the nature of medication abortion seems to be reshaping how Americans think about terminating a pregnancy: The number of those who see abortion as a moral decision has increased in recent years.
The Texas lawsuit is part of a much broader antiabortion strategy that will unfold in the new year. Besides targeting telemedicine and pills, antiabortion groups plan to pursue anyone who aids or abets abortion — for example, internet service providers that allow websites to provide information about abortion pills and where to get them. Other proposals copy a Louisiana law that designates safe and effective drugs used in abortion as “controlled substances.”
In addition to these maneuvers, look for abortion opponents to lobby the Trump administration to reinterpret the Comstock Act, a 19th century obscenity law, to make it illegal to send anything used in abortions by mail. That could create the equivalent of a nationwide ban, which Congress so far won’t legislate and voters don’t want.
And there are other steps the Trump administration could take that would dramatically change abortion access. In 2023, the Food and Drug Administration made changes to the restrictions governing mifepristone and telemedicine abortion appointments. Ever since, antiabortion groups have developed a grab-bag of arguments against the FDA’s rules. They argue that the consensus of peer-reviewed studies is wrong and that mifepristone is extremely dangerous. They also have argued that mifepristone and fetal “remains” are an environmental hazard polluting groundwater.
Robert F. Kennedy Jr., who would have oversight of the FDA if he is confirmed as Trump’s pick to be secretary of the Department of Health and Human Services, said he was pro-choice on the campaign trail, but he also has signaled openness to the antiabortion movement. Claims about drug safety and environmental hazards might resonate with Kennedy, who is an opponent of Big Pharma and once worked in environmental law.
The Supreme Court decision overturning Roe has done nothing to end abortion battles; instead, it has given them new life. Fights over telemedicine consultations, mail-order access to abortion pills and FDA safety rules could make abortion bans far more effective, reshape the procedure in states that protect abortion rights and expand the power of one state to dictate policy in another.
Most important: If abortion opponents succeed in making abortion pills inaccessible, the stigma surrounding abortion may well increase, and access to the procedure decrease. That’s why antiabortion groups have been relentless in their pursuit of pills. Nothing less than Americans’ view of abortion itself is on the line.
Mary Ziegler is a law professor at UC Davis. Her latest book, “Personhood: The New Civil War over Reproduction,” is scheduled for publication in April.
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