Day 121…
It looks like it is going to rain steadily all day today. No outside walks or rides for me. It’s one thing to get caught in the rain while I am out there, but another thing to walk knowingly into the flood.
The City painted a giant Black Lives Matter banner on Fifth Avenue right outside Trump Tower yesterday while it was still dry out. It’s oriented in such a way that anybody inside the building will be able to read it the proper way up when they look out their windows.
Civil disobedience is all about drawing attention to something that needs it. While there is certainly an amount of petty gleeful triumph that I feel about this being painted on the street right in front of the President’s home, how else to get his attention?
By all accounts the President isolates himself and is isolated from news that he doesn’t want to hear. Reports from within the White House all seem to include stories about aides carefully monitoring what gets to him and what is hidden so as not to cause him to fly off into a rage. He doesn’t want to hear anything against Russia. He doesn’t want to hear anything about the pandemic, and he doesn’t want to hear anything about social injustice. He can’t miss it now.
The Supreme Court ruled in a way, yesterday, that he cannot possibly have wanted to hear about either. There were two separate cases - the first involved the New York Grand Jury and the second involved Congress.
The investigations into the President’s financial dealings were begun some time ago because it appeared that the President was using his office for personal gain. Congress wanted to see whether or not there was a need to enact legislation that would make it more difficult for a sitting President to enrich himself and his businesses from the public coffers as well as whether international money laundering laws needed to be tightened.
In the first case, Trump v. Vance, the New York Grand Jury, in its investigation into the President’s past financial history, issued subpoenas to two banks, Deutsche Bank and Capital One and an accounting firm, Mazars USA for them to turn over their records pertaining to the President and his companies. Vance refers to Cyrus Vance, Jr., the New York County District Attorney.
We don’t know how broad the Grand Jury’s investigation actually is, but it probably also extends to the Stormy Daniel’s case in terms of where the hush money paid to her to keep her relationship with the President quiet actually came from.
The three companies were willing to provide the records, but the President objected. His argument was that the President is not like an ordinary citizen. While in office, he should be immune to law enforcement and subpoenas.
Cases similar to this have come before the Court before. In 1974 the Court unanimously ruled that Nixon had to comply with a grand jury subpoena and hand over tapes that were relevant to a criminal investigation. In 1997 the Court ruled unanimously that Clinton had to testify in the Monica Lewinsky civil sexual harassment suit.
In both of those cases, the defense argument was much the same - the President, while in office, should be considered to be above the law.
In the case of Trump v. Vance, the Supreme Court yet again disagreed with that line of defense.
Justice Roberts, writing the majority opinion, stated “No citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding.”
The second case, Trump v. Mazars USA, involved Congress’s attempt through the D.C. Circuit to subpoena the President’s accounting firm. In this case the Justices denied them the right to do that. What they said was that Congress was overstepping its authority legislatively. The case needs to be sent back down to the lower courts to be decided. Justice Roberts wrote, “Without limits on its subpoena powers, Congress could ‘exert an imperious control’ over the Executive Branch and aggrandize itself at the President’s expense, just as the Framers feared.”
So, what does this mean?
In the short term, it means that we are unlikely to all see the President’s tax records before the election in November which is what many people were hoping for. We will likely see them eventually, but that process will now need to play out in the lower courts.
In the long term, however, it more clearly defines the separation of power among the major branches of our government and more clearly sets limits on the President’s authority. In essence, the rulings affirm that the President is not a monarch.
Even though the two rulings were not unanimous, they were heavily weighted with both decisions coming in at 7-2. It is encouraging to note that both Justices Gorsuch and Kavanaugh, appointed by the President, sided against him and based their decisions upon their readings of the law.
Justice Kavanaugh wrote in agreement with Justice Roberts, "The Court today unanimously concludes that a President does not possess absolute immunity from a state criminal subpoena, but also unanimously agrees that this case should be remanded to the District Court, where the President may raise constitutional and legal objections to the subpoena as appropriate."
The President is unsurprisingly apoplectic.
The final case that the Supreme Court ruled on yesterday, before they shut down for the summer, is truly fascinating.
Before it became a state, a huge part of the eastern side of Oklahoma belonged to what the European population called The Five Civilized Tribes - Cherokee, Chickasaw, Choctaw, Seminole and Creek who are now called Muscogee. The Europeans considered them “civilized” because many practiced Christianity and they had central governments. Really though, it was because they dealt with the Europeans in a relatively peaceful way.
The Five Tribes of Oklahoma, as they are referred to now, were not from Oklahoma. They were driven there by the Europeans in the middle 1800’s in what is called the Trail of Tears. 60,000 people were forced by the US government to march west on foot from their lush and fertile farmlands in the east to the dry desert of eastern Oklahoma.
It was one of the cruelest chapters in our long history of cruelty as a country. Many perished along the way.
The Five Tribes established reservations once they arrived.
Reservations are FEDERALLY recognized entities.
In 1906, however, Congress passed the Oklahoma Enabling Act to dis-establish the reservations, thereby enabling Oklahoma to become a state. Which is exactly what came to pass the following year.
OK. So, moving forward to 2015. A guy named Patrick Murphy, a descendent of Native Americans, admitted to committing a murder in Muscogee territory. He was tried by the Oklahoma state courts.
He argued that his case should be tried by a FEDERAL court because the Enabling Act had failed to disestablish the territories. Therefore, because the crime happened on a reservation, under the Major Crimes Act, it was a federal offense, not a state one.
It bounced back and forth between the lower courts and finally ended up at the Supreme Court two years ago. Because Justice Gorsuch had been a judge in one of the lower courts and had been a part of the prior rulings, he recused himself. The case, as a result, was never resolved.
Moving forward to the case that was decided yesterday. McGirt v. Oklahoma.
Jimcy McGirt, a Native American descendent, had sex with an underage child in 1996 in Five Tribes territory and was tried and convicted of the crime in an Oklahoma State court for which he is now serving a life sentence.
The same thing happened that happened with Murphy. His case bounced around the lower courts and ultimately ended up at the Supreme Court.
Yesterday, the Supreme Court ruled 5-4 in favor of McGirt. The Court said that the Oklahoma Enabling Act had, indeed, failed to dis-establish the reservations, so McGirt’s case should have been tried in a federal court.
The immediate result of this decision is that half of Oklahoma, including the land upon which Tulsa sits, is now a federally recognized reservation.
What does this mean? I honestly don’t know.
Justice Gorsuch was joined by the four Democratic appointees when he wrote the majority opinion. According to observers, there was concern among the Justices about what this decision might mean. Federal courts will need to take on the 8,000 or so annual felony cases that this would impact. Outside of the courts, this decision will also impact legal matters concerning businesses and other civil actions that will now fall under tribal jurisdiction rather than that of the state.
Justice Sotomayor said that Congress could simply solve the issue by passing official dis-establishing legislation. But will they?
We have a Democratic-controlled Congress. After the Supreme Court has just given more power and autonomy to the Native American tribes of Oklahoma, will Congress really just take it away again?
We are in the middle of working through social justice reforms on a massive nation-wide scale. Our attention has been focused on the lives of African Americans in this country. Dis-establishing these Oklahoma reservations may be the trigger that forces us, finally, to look at how we, as a nation, have also treated the Native American population. Spoiler alert: extremely badly.
I truly don’t know what this decision is going to mean. I am almost completely certain, however, that despite this decision being somewhat overshadowed and ignored in the last 36 hours that we haven’t heard the last of it by a long shot.
It is pissing down rain outside today. The sky is dark and the trees outside our living room windows are really whipping around in the wind.
The cat hates it. When the first raindrop hits the air conditioner, he’s out. There are only a couple of places in the apartment where he can truly hide. One of them is Michael’s grandparent’s tall antique standing wooden radio. The cloth covering of the speakers in the lower part of it needs replacing because it is basically rotting away. The cat has ripped open a flap that lets him squeeze into the base and hide. I assume that’s where he is.
I’m glad that they were able to get the Black Lives Matter painting done yesterday before this started. There’s another one up at 125th Street on Adam Clayton Powell Boulevard. Larger letters that take up two blocks - one running uptown and the other running downtown. The Harlem version is more artistic - different colors and some of the letters have images within them.
Here’s a somewhat shameless shout out about something I have been working on for the last couple of weeks.
Tonight, since I think most of us are going to be stuck at home, I would like to put forward the option of watching Bernadette Peters: A Special Concert. It is a concert that we filmed ten years ago at the Minskoff Theatre on Broadway but was never released. Tonight, will be the very first time that anyone who wasn’t actually there on the night can see it.
We have put it together with some great commentary from Bernadette and Michael Urie as a fundraiser for Broadway Cares / Equity Fights AIDS.
Here’s the link-
https://broadwaycares.org/pre-event/bernadette-peters-a-special-concert/
It is going to stream tonight at 8:00pm EST.
My phone app says that there is an 80% chance of thunderstorms at 8, so it will be a perfect time to watch.
And to donate to an amazing organization.
Keep dry everyone!
I’m filled with knowledge of things I never knew today, because of you
and tonight at 8
will “tune into”
Bernedette the great
We Care 💕