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A Disabled Executive: The Special Counsel Investigation and Presidential Immunities |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=45295"><span class="small">Bob Bauer, Lawfare</span></a>
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Tuesday, 20 June 2017 08:14 |
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Bauer writes: "The long-standing constitutional question, so far unaddressed by any court, is again raised: do the strains on a presidency under investigation require the conclusion that the president cannot be indicted while in office?"
Donald Trump. (photo: USA TODAY)
A Disabled Executive: The Special Counsel Investigation and Presidential Immunities
By Bob Bauer, Lawfare
20 June 17
 he press reports that the White House has suffered from “mass hysteria” over the Special Counsel investigation and the president’s responses to it. Our most senior government officials, including our vice president, are hiring lawyers. The Administration is facing difficulties in attracting qualified nominees to fill key positions. The daily White House press briefing is deluged with key questions that the official spokespersons decline to answer and instead refer to the president’s private lawyer. The Special Counsel investigation is now fully underway and media coverage is high-pitched and nonstop. And intense days of coverage are kicked off in the morning by shrill presidential tweets.
The investigation is beginning to consume the Trump Administration. Most notably, the president seems to have little capacity for managing these pressures. As suggested by his inability to stay off Twitter, he is evidently not one to “compartmentalize” sufficiently to push the inquiry to one side while carrying on regular business. Special Counsel Robert Mueller is barely into his task and so one might ask: what happens when the investigation begins to accelerate and, worse, if indictment becomes a possibility?
It is at this point that the long-standing constitutional question, so far unaddressed by any court, is again raised: do the strains on a presidency under investigation require the conclusion that the president cannot be indicted while in office? As recently as 2000, the Office of Legal Counsel affirmed the position it took in 1973 with an emphatic “yes.” And does this conclusion lead inexorably to another one—that this claimed presidential immunity from indictment or prosecution extends to investigations as well?
OLC has taken the position that while the Constitution does not explicitly provide for immunity from indictment or prosecution, and the record on the Founders’ views of the question is inconclusive, the constitutional role of the president requires that he or she be afforded temporary immunity. Indictment and prosecution would have a “dramatically destabilizing effect” on the president’s capacity to discharge his or her duties. The executive’s energies would be diverted into the “substantial preparation” needed for his legal defense. The mere stigma and opprobrium of indictment, and possibly conviction, would result in “undermining the president’s leadership and efficacy both home and abroad.”
The 2000 opinion landed hard on conclusion that “given the potentially momentous political consequences for the Nation at stake, there is a fundamental, structural incompatibility between the ordinary application of the criminal process and the Office of the President." Of course, delay in either indictment or trial until a term ended would be costly to the administration of justice: but “while significant, [they] are not controlling. In the case of clear and serious criminal wrongdoing, Congress can act to impeach, and this outcome is more consistent with democratic values than “shifting an awesome power to unelected persons lacking an explicit constitutional role vis-ŕ-vis the President.” The opinion also rejected the option of allowing for indictment but deferring trial, embracing the 1973’s judgment that this half-measure is just a gamble that the president could somehow still govern under indictment. (It characterizes this gamble, in what in the current context is a striking double entendre, as “Russian roulette.”)
This analysis was always open to serious objections, but the shocks to the system from Mr. Mueller's investigation makes its weakness all the more apparent. From the beginning it was unclear how the OLC’s reasoning distinguished between indictments and prosecutions, on the one hand, and investigations, on the other. The institution of a serious investigation into presidential wrongdoing has been sufficient to lead to” mass hysteria” in the West Wing. It has clearly and heavily burdened the president—one need only read his tweets—and disrupted normal business and the recruitment of personnel for key positions. So, while few doubt that the president is subject to investigation, it is hard to see how these disruptions can be easily distinguished from those associated with indictment. The difference is one of degree, not of kind, and as the Nixon experience established, those differences are indeed fine.
And as the current investigation continues—interviews are conducted, documents requested, witnesses hire lawyers, and inevitably leaks issue from sundry quarters—these distractions will worsen. The more serious and far-reaching the investigation becomes, the greater will be disruption. By the time of his resignation, President Nixon had not been indicted, but his capacity for governance had been all but extinguished.
It is possible, of course, to believe that for just these reasons OLC did not go far enough, and that it should have clearly extended temporary immunity to the investigative stage. The drafters in 1973 and 2000 declined to take this next step. Doubtless they were constrained by a powerful democratic norm, reflected in the Supreme Court’s pointed rejection in United States v. Nixon of any suggestion that the president, as the head of a unitary executive branch, is somehow “above the law.” True, the Court stated that “the Framers of the Constitution sought to provide a comprehensive system” of separated powers, but “the separate powers were not intended to operate with absolute independence.” The president would have to yield some of his or her authority within this executive domain to the impartial administration of the criminal laws.
The OLC in 1973 anticipated these profound concerns and Nixon was decided a year later. Another three decades afterward, by the time of the most recent OLC pass on the question, the norm had only gained in force. The result was a president at least required to submit to investigation, even if he or she could not in the end be indicted, stand trial, and be convicted. That is the line that OLC drew and has held in assuring that the president is not “above the law.”
However, the 2000 OLC opinion did not effectively defend that line. It tried gamely, but more or less in passing, to show that investigations can be managed without undue disruption. In a footnote, it noted that a grand jury could still “collect” and “preserve” evidence, available for use once the president has left office. The picture it presented is that of the grand jury working quietly in the background. More realistic is what we had in the Nixon era and may be seeing develop today: a full-fledged investigation from within the executive branch, by special counsel dedicated to this purpose. It is not a question of a grand jury collecting and preserving but of the Special Counsel investigating. The process is active, not passive.
It is also telling that the used something like this active/passive distinction to downplay the potentially disruptive impact of an investigation. An investigation in a lower key may be less of a threat to governance, but it may also suggest less of a priority for the criminal justice system. A major inquiry at full boil is most often an indication of the seriousness of the potential charges, and yet it is here—where the public interest in a presidency accountable to law is keenest—that the OLC’s concern with disruption is most obviously triggered. By a strange twist of constitutional logic, the president under investigation for the most serious wrongdoing would then have the most compelling claim to immunity.
On the other side, the opinion did not engage seriously with the question of how temporary immunity from indictment or prosecution can be reconciled with the due administration of justice. For example, it included the president’s exposure to the stigma of a criminal charge among the “dramatically destabilizing effects” of an indictment. Of course, unresolved questions of criminal misconduct also cast shadows on a presidency, as the Nixon saga showed. The opinion did not explain how the president’s credibility is enhanced by charges left hanging and defended only by a claim of immunity. It might be just as persuasively argued that the president who engages with the criminal justice process does more honor to the office and invites closer consideration of the merits of his self-defense. “I did no wrong, and here is why” has a more presidential ring and better serves the rule of law than “You can’t get me.”
The OLC opinion acknowledged that failure to subject the president to the normal criminal justice process on even a temporary basis might fatally compromise the prospects for prosecution after he leaves office. Over the course of the time, memories fade or fail, evidence is degraded, and witnesses pass away. The OLC opinion further conceded that “the consequences of any prejudicial loss of evidence that does occur in the criminal context are more grave [than even in the civil litigation], given the presumptively greater stakes for both for the United States and the defendant in criminal litigation.” Yet it discounted these costs when weighing, in the balance, other interests. Mostly the opinion fell back on a comforting image of a grand jury operating silently and (somehow) mostly out of sight and out of the way.
But that is not how it goes with high-profile, high-stakes investigations. We have them or we don’t: there is no quiet, non-disruptive version. And if we have them, accepting the disruptions they entail, then it is difficult to argue that they cannot be brought to one possible conclusion, if justified by the evidence: indictment. If a president can be investigated, then, it seems, a president can be indicted; if not in the second case, then not in either case, because it cannot be said that the government in the throes of a major investigation is measurably or reliably safer from severe “disruption” and massive loss of presidential credibility. The better, more internally consistent view in line with democratic “rule of law” norms is that the president is subject to investigation and, if the evidence supports it, indictment.
It is true that the president could use his executive authority to thwart an investigation. He can fire prosecutors one after the other until he arrives at a pliant replacement. His management of the “unitary executive” gives him at least that authority. It is also highly probable that, whatever its view of the core offense under investigation, Congress would intervene via the impeachment process to restoring the “rule of law.” Charges and evidence of obstruction are what brought about Nixon’s fatal loss of Republican support in the Congress. So far, too, Mr. Trump’s Republican supporters—including his own attorney general—have signaled to him that he should not dismiss Special Counsel Mueller. It is in constitutional theory only that a president may order an end to an investigation directed against him. In practice, he will fail.
If a president is not, then, immune from investigation or indictment, the “dramatically destabilizing effects” on government may be addressed in one of three ways. The president could resign. Congress could move to impeachment. Also available is the 25th Amendment, which permits a president to temporarily vacate the office while fighting the indictment and standing trial—perhaps, in the thick of an investigation, while fending off indictment.
The 2000 opinion was equivocal in its treatment of the 25th Amendment, particularly as an answer to the possible incarceration of a president following conviction. But it also conceded that “the amendment's terms ‘unable’ and ‘inability’ were not . . . narrowly defined, apparently out of a recognition that situations of inability might take various forms not neatly falling into categories of physical or mental illness.” A president who faced what the OLC termed the “substantial preparation” required for a criminal defense, and the “dramatically destabilizing effects” of criminal process on his capacity to govern, would have a clear choice under the 25th Amendment. The same choice is open to the vice president with the support of the Cabinet if they reach this conclusion but the president resists.
In a case where, as of now, neither impeachment nor resignation is probable, the 25th Amendment supplies more of an answer than OLC would credit to the problem of an incapacitated presidency. It is also more convincing than temporary immunity from indictment or prosecution that is grounded in dubious reasoning about the implications of the “constitutional structure” and that, if taken to its logical conclusion, would also insulate a president from investigation into serious criminal wrongdoing.
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Code Red on Senate Health Bill |
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Tuesday, 20 June 2017 08:11 |
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Hiltzik writes: "The Senate is contemplating a change in Medicaid that would cut it even more than the $830-billion proposed by the House."
Senator Mitch McConnell, the Senate majority leader. (photo: J. Scott Applewhite/AP)
Code Red on Senate Health Bill
By Michael Hiltzik, Los Angeles Times
20 June 17
 There was widespread speculation, after House Republicans rushed through their version of a healthcare revamp bill, that there would be no such rush to act so quickly on major healthcare legislation in the Senate. The Senate it was opined would be more deliberative, more responsible and more likely to carefully consider the long term ramifications of their actions.
It now appears the Senate Republicans will act with greater ruthlessness and abandon even more than their House counterparts. The bill written by a small group of Republican Senators, all men, is totally secret and will apparently be moved to a vote with little or no public debate whatsoever.
Senate Republicans will not act more responsibly than those in the house. They intend to act with even greater efficiency to eviscerate the American health care system. - MA/RSN
 n the all-out quest for ways to strip health coverage from millions of people in order to deliver a huge tax cut to the richest Americans, Senate Republicans have been regarded as more moderate than their House colleagues. But a proposal leaked from the Senate GOP’s closed-door drafting sessions on an Obamacare repeal bill may put that notion to rest: The Senate is contemplating a change in Medicaid that would cut it even more than the $830-billion proposed by the House.
That news comes from The Hill, which reported Monday that the Senate is contemplating imposing a lower inflation growth rate on Medicaid, which would be capped in both proposals. The Senate’s idea is to allow Medicaid to grow at the rate of the overall consumer price index (specifically, the CPI for all urban consumers, the most commonly used variant).
That’s a much lower growth rate than the index in the American Health Care Act, which House Republicans passed in May as a measure to repeal the the Affordable Care Act. The House caps growth in the Medicaid budget at the CPI for medical care, which grows much faster.
The difference would produce a massively larger cut in Medicaid than the House bill. That’s remarkable, because the House bill would drive 14 million people out of Medicaid by 2026, according to the Congressional Budget Office. The Senate version, which hasn’t been presented in its entirely to the CBO because it’s still being worked on in secret, is certain to cost many more Americans their coverage.
This would not be the first time that lawmakers attempted to manipulate inflation indexing to cut social insurance benefits. Changing the cost-of-living index is a perennial nostrum for reducing Social Security payouts; a popular idea is to substitute a “chained” CPI index for the conventional CPI, largely because the former grows at a slower rate than the latter.
This is not solely a conservative idea; President Obama considered it a few years ago too. But in any form it’s a sneaky and underhanded path to a benefit cut. As health insurance expert David Anderson of Duke University observes, it’s subtle enough that the implications might escape large numbers of voters or even legislators. That shouldn’t be allowed to happen.
The Hill reports that the proposal has been sent to the CBO for its analysis, but the answer is likely to be grim. That could cost the Senate effort support from moderates, some of whom have been focusing on the need to protect Medicaid because cuts in its federal funding will mean higher costs for state governments, unless they drastically reduce benefits.
It’s proper to note that there’s a major disconnect between the way the Republicans consider Medicaid, which is as a program that largely benefits the expendable poor, and the reality: It’s the nation’s largest single health insurer. Of its 73 million enrollees, 43% are children and 13% blind and disabled persons. The program covers “more than 60% of all nursing home residents and 40% of costs for long-term care services and supports,” reports the Center on Budget and Policy Priorities. The program pays for half of all births in the U.S.--in some states, two-thirds. Plainly, cutting or capping Medicaid benefits will cause pain and suffering across a broad spectrum of Americans.
Just last week, seven governors—including three Republicans—warned Senate Majority Leader Mitch McConnell (R-Ky.) and Minority Leader Charles Schumer (D-N.Y.) in a letter that the House bill, H.R. 1628, “calls into question coverage for the vulnerable and fails to provide the necessary resources to ensure that no one is left out.” They called its Medicaid provisions “particularly problematic,” to the extent they would be “shifting significant costs to the states.”
The signers were Republicans John Kasich of Ohio, Brian Sandoval of Nevada and Charles D. Baker of Massachusetts, and Democrats Steve Bullock of Montana, John Bel Edwards of Louisiana, John Hickenlooper of Colorado, and Tom Wolf of Pennsylvania.
Lowering the growth rate of Medicaid is “a massive cut of future growth,” says Anderson. Here’s how that would happen.
The analysis starts with the House bill’s plan to convert Medicaid to a block grant for states. In addition to eliminating the ACA’s Medicaid expansion, the bill would limit the growth in that block grant to enrollment growth while capping per-capita growth at the CPI for medical care, or CPI-M. For enrollees who are disabled or 65 or older, the per-capita growth rate would be CPI-M plus one percentage point. The Senate bill would reduce the per-capita growth rate to that of the CPI-U.
As Anderson notes, the CPI-M grew by 2.7% in May 2017 over the same month a year ago. CPI-U grew by only 1.9%. If we apply that to the federal share of Medicaid spending, which was $344 billion in 2015 (the latest year for which government figures are available), in one year alone the Senate would provide $2.75 billion less than the House.
Assuming that the two indices continued to diverge by the current rate, the gap would only grow. By 2026, it would reach a total of more than $200 billion—over and above the $830 billion the House proposes to cut. So that’s a trillion-dollar Medicaid cut over current federal spending on Medicaid, a boon for the high-income beneficiaries of the Republican tax cut, and pure disaster for the beneficiaries—children, adults and the disabled.
That outcome underscores the necessity of putting a stop to the Senate GOP’s intention to ram their version of Obamacare repeal through to a vote without a full public airing. The manipulation of the Medicaid growth rate is only one of untold ways they could be harming Americans’ welfare. No wonder they’re trying to do so behind closed doors.
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Victories Against Trump Are Mounting. Here's How We Deal the Final Blow |
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Monday, 19 June 2017 13:43 |
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Solnit writes: "This crisis could be the death or the recovery of a more democratic, more inclusive, more generous America. Where we go from here is up to us."
'Taking action is the best cure for despair.' (photo: Barcroft Images/UPI)
Victories Against Trump Are Mounting. Here's How We Deal the Final Blow
By Rebecca Solnit, Guardian UK
19 June 17
The judiciary, legislative and media have all helped keep Trump in check. But it’s the residents of the United States whose response will matter most in the end
n this moment, populist intervention is everything, not as hate and attack but as an expression of popular will and power. Or as love, since we defend what we love. It is an extraordinary moment, an all-hands-on-deck emergency in which new groups and coalitions are emerging along with unforeseen capacities in many people who didn’t previously think they were activists. It is saturated with possibility, as well as with danger.
Of course there are also people residing in the US who love the dismantling of healthcare, education, environmental protection and the bill of rights, but they are an increasingly small minority. The most recent Gallup poll found nearly twice as many people – 60% disapprove of the president – than approve (36%).
The graph shows a growing chasm between the minority that approves and the rest of us, and nearly half the public likes the idea of impeachment. Republican approval of the direction the country is going fell an unprecedented 17% in a month, according to a new Gallup poll.
People who don’t like democracy and civil rights don’t think what the public thinks matters; that includes the Trump administration, which seems to have thought that power would be inherent in the presidency, rather than dependent on honoring relationships with institutions, allies, with rules and laws. What the public thinks matters, if we turn thoughts into actions.
The great conundrum of this crisis is that if people believe that they have the power to change this nation’s destiny, they will act; and if they don’t they won’t. Like many other prophecies, this one is self-fulfilling either way. I believe we have the capacity to limit the damage or even bring down the Trump administration through nonviolent resistance and good organizing, and I see extraordinary things happening in this moment.
We are off to a good start. After all this is an administration that has been stymied at almost every turn, unable to kill off Obamacare in its first five months, or build a wall on the Mexican border, or cancel sanctions against Russia, or pass almost any significant legislation, an administration harried by an investigation into its possible collusion to corrupt an election and serve a foreign power.
The resistance is an oft-used shorthand for all the forms of opposition, though many of them are institutions – the judiciary, the states, cities – that would probably not embrace the term. But they are opposing, overturning and interfering. In several cases this spring, state courts and the supreme court have ruled against gerrymandering and other forms of discrimination against voters of color and voting rights.
The ninth circuit court ruled against the travel ban this week, one of several interventions against it in the courts. And 17 state attorney generals filed an amicus brief with the supreme court against the ban. Maryland and the District of Columbia filed a lawsuit this week accusing Trump of violating the emoluments clauses by accepting foreign income through his businesses, the subject of myriad lawsuits and complaints filed by Crew (Citizens for Responsibility and Ethics in Washington).
On 12 June, a judge granted a temporary reprieve to Dreamer Jessica Colotl, whose deportation protection had been revoked. More than 2,000 mayors, governors, college presidents, and other leaders have signed a pledge “to declare that we will continue to support climate action to meet the Paris Agreement”.
Democrats in the legislative branch of government have been mocking Trump, from the proposed Covfefe Act (it’s an acronym for Communications Over Various Feeds Electronically For Engagement, but also a joke about a peculiar tweet of Trump’s including that word, or nonword) that would ban him from deleting tweets on the grounds that they’re presidential records, to Senate minority leader Chuck Schumer’s videotaped parody of Trump’s cabinet meeting in which all members dutifully praised him. (Writer JK Rowling called Trump out for his pettily vindictive response to killings in London. Even Smirmoff Vodka got a dig in with an ad that said “we’d be happy to talk about our ties to Russia under oath.”)
Senator Kamala Harris has gone after attorney general Jeff Sessions hard (despite male senators who keep trying to hush her up). Congresswoman Maxine Waters is demanding impeachment. And Congress is holding hearings about the Trump administration’s relationship with the Russian government and its coverups.
Last week fired FBI director James Comey ripped the president to shreds as a liar, a creep, and an incompetent manipulator of truth and staff, and since then things have gotten worse for the administration. The Russia scandal could contaminate Pence, as well as Trump, Jared Kushner and Sessions.
In the media, Rachel Maddow of liberal MSNBC has beat Fox to the number one spot in cable-news prime time. Fox is in disarray, with its star Bill O’Reilly forced out after a series of sexual-harrassment charges. Brilliant organizing by the Twitter-based group Sleeping Giants has pushed advertisers to abandon Sean Hannity’s show after the Fox host pushed conspiracy theories about the death of Seth Rich, despite Rich’s parents pleas to desist.
Breitbart has lost nearly 90% of its advertisers in another Sleeping Giants victory. Teen Vogue has become a feminist beacon, and other women’s magazines have developed superb political coverage. Newspapers, notably the revamped Washington Post, are doing a superb job investigating and exposing the administration.
The bombshell revelations that dropped one after another in May will long be remembered, perhaps as when the Trump administration fell too far to pick itself up. This month already Forbes exposed the Trump family for figuring out how to skim a profit off donations for children with cancer. USA today revealed that in the past year, “about 70% of buyers of Trump properties were limited liability companies – corporate entities that allow people to purchase property without revealing all of the owners’ names. That compares with about 4% of buyers in the two years before.”
Administrations around the world are figuring out how to work around the administration. The European Union and China are working on moving forward on addressing climate change, while cities and states throughout the USA have made their own commitment to honor the terms of the Paris climate agreement, despite Trump (whose pullout is symbolic, since it goes into effect after the next presidential election; many don’t expect him to serve out one term, let alone win another).
The environmental ministers of the Group of Seven nations are moving forward without EPA head and climate denier Scott Pruitt. The Guardian reported: “The greater ‘bang-for-buck’ resulted from plummeting prices for solar and wind power and led to new power deals in countries including Denmark, Egypt, India, Mexico and the United Arab Emirates all being priced well below fossil fuel or nuclear options.” Trump celebrated coal as part of his backward-looking agenda, but India is cancelling plans to build coal-power plants while South Korea is shutting them down.
Britain rejected Theresa May’s rightwing politics in an election she called that shifted power to Labour; it followed on the heels of centrist Emmanuel Macron’s victory over far-right Marine LePen. Angela Merkel and Macron have made it clear they are happy to assume the mantle of leadership the US has dropped. Vicente Fox, former president of Mexico, keeps trolling Trump online about the wall.
All of this is to say that there is tremendous opposition from many kinds of groups, institutions, and individuals, here and abroad. This doesn’t mean there isn’t suffering and loss. I’ve heard from great organizers who are heartbroken and exhausted; I know Muslims who are fearful; an undocumented woman whose father has been imprisoned by Ice. I am horrified by the defunding of programs to prevent Aids internationally, which could result in a million deaths. And the brutality is real.
I’ve also talked to everyday citizens who have become activists and longtime organizers who are doing extraordinary things, and who are exhilarated by the solidarity and the possibility – of what we have become together, and of what they themselves have become.
Taking action is the best cure for despair. I’ve listed a little of what officials in the judiciary and legislative branch are doing, the shifts in the media, the response overseas. But it’s the residents of the United States whose response will matter most in the end.
Civil society awoken and arisen is a power adequate to counter the power of an increasingly isolated, confused, frightened and bumbling administration.
Many are organizing now to change the direction of the country in the midterm elections. In Utah, Mormon women have organized in solidarity with undocumented families. Philadelphians are training to disrupt deportation raids on undocumented immigrants.
In Southern California, a Latino-Muslim alliance started a project called Taco Trucks at Every Mosque, timed to coincide with the holy month of Ramadan. The group Common Defense unites veterans and military families for civil rights and against the Trump agenda. Queer, trans and feminist groups have proliferated. Earlier this year, Muslims raised $100,000 to repair a Jewish cemetery in St Louis.
There are far more generous-hearted such project than I can list, strengthening ties far beyond tolerance, restating the case for environmental protection and social justice including feminism, trans rights, immigrant rights. And there is a level of engagement with electoral politics the likes of which I have never seen, pushing on legislation and pressuring politicians, supporting progressive candidates, including many people of color and women running for the first time.
First-time candidate Danica Roem, a transgender journalist, beat three other candidates to win a Democratic primary in Virginia and may beat a Republican homophobe for a seat in the state assembly. This activism needs to be sustained, and it needs to be strategic. It needs to address voting rights, and midterm elections, and it needs to remember all the powers and possibilities that lie in activism beyond electoral politics as well. So far so good.
Greenpeace USA executive director Annie Leonard told me that they don’t have to try to recruit or inform people anymore, that they can’t “answer the phones fast enough”; that people are showing up ready to try to change the world. She said everything groups like hers have been doing for decades “was all practice for this moment”.
People like to predict the future, often a dismal future, but the future is not written. It is ours to write. In this moment of utter turmoil, civil society must be the counter to a rogue administration, one whose victory is a surprise equaled by its myriad defeats ever since.
A crisis, says one dictionary, is “the point in the progress of a disease when a change takes place which is decisive of recovery or death; also, any marked or sudden change of symptoms, etc.” This crisis could be the death or the recovery of a more democratic, more inclusive, more generous America. Where we go from here is up to us.
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June 19 Should Be a National Holiday |
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Monday, 19 June 2017 13:40 |
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Walters writes: "Two and a half years after the Emancipation Proclamation, slavery had finally come to an end in Texas. That day - June 19, 1865 - would come to be celebrated by black Americans all over the country, who remember Juneteenth as the anniversary of their historic triumph over the planter class. It should be a national holiday."
Tariah Horton and the J's Diamonds dance troupe perform during the Juneteenth parade in East Austin on Saturday. (photo: Jorge Sanhueza-Lyon/KUT)
June 19 Should Be a National Holiday
By Jonah Walters, Jacobin
19 June 17
On June 19, 1865, slavery ended in Texas. Juneteenth should be a national holiday.
 ne hundred fifty-one years ago today, a warship landed in the harbor of Galveston, Texas. Union general Gordon Granger was on board, along with about two thousand Union soldiers.
Later that day, Granger stood on the balcony of Ashton Villa — Galveston’s most luxurious mansion and a onetime Confederate military headquarters, built by slaves just five years earlier. He announced the dawn of a new era, reading from General Order 3, a document declaring the end of the Civil War and reasserting the power of the Federal government over the soon-to-be reconstructed South.
But Granger’s most important message was directed not to Galveston’s cotton planters or shipping magnates, but to their slaves:
The people of Texas are informed that in accordance with a Proclamation from the Executive of the United States, all slaves are free. This involves an absolute equality of rights and rights of property between former masters and slaves…
The crowd was jubilant. Many of the assembled spectators were black Texans who had been deceived about the war’s progress by planters hoping to maintain control over their captive workforce for one last cotton harvest.
Two and a half years after the Emancipation Proclamation, slavery had finally come to an end in Texas. That day — June 19, 1865 — would come to be celebrated by black Americans all over the country, who remember Juneteenth as the anniversary of their historic triumph over the planter class.
It should be a national holiday.
Slavers Can’t Hide
As antislavery sentiment grew in the North, many Southern planters sought increasingly remote territories in which to establish plantations. Many planters set their sights on Texas, which they imagined to be further outside the Federal government’s reach than the plantation states of the southeast.
A pro-slavery insurrection against Mexico established the Texas Republic in 1835, and Southern elites seized the opportunity to add a vast new slave territory to the union, pressuring the Federal government into annexing the territory in 1845.
Once Texas became a state, its enslaved population skyrocketed as planters relocated to the region. Just five years after its annexation, the enslaved population had jumped from 11,000 in 1840 to more than 58,000 in 1850.
This number only continued to grow as the war drew more near. On the eve of the Civil War, black slaves made up more than 30 percent of the Texas population. A quarter of white Texans owned slaves.
Planters flocked to Texas in even greater numbers after the fighting began, bringing their slaves with them. By war’s end in 1865 there were as many as a quarter million slaves in the state. About one thousand of them lived in Galveston, where they worked in the service of wealthy homeowners or as dockhands at the port.
Narratives by former slaves demonstrate the brutality of life on Texas plantations — and the outrageous cruelty of the Texas planters.
Armstead Barrett, who was enslaved on a plantation close to Huntsville, described being treated like livestock, working long hours in the Texas heat only to be inspected by a doctor in the evening, “like fat beef.”
“Most of the time we all went naked,” he recalled. “Just have on one shirt or no shirt at all.”
Barrett also recalled the chaos in the months before General Granger’s arrival, when rumors of the Civil War’s end had begun to circulate among slaves and their overseers, and plantations began to slip out of their owners’ control.
I know when peace was declared they [the slaves] were all shoutin’. One woman was hollerin’ and a white man with a high-steppin’ horse rode close to her, and I saw him get out and open his knife and cut her wide across the stomach. Then he put his hat inside his shirt and rode off like lightnin’. The woman was put in a wagon and I never heard more ’bout her.
But sometimes the tables were turned. Barrett also recalls the decapitation of one particularly abusive overseer by two slaves he tormented, who then left his severed head in their master’s field as a warning to all their oppressors.
When Union troops arrived in Galveston bearing news of General Order 3, the embattled slaves were confirmed as the victors in this bitter conflict over their futures.
They were free to make their own way.
A People On the Move
General Granger’s announcement included a line advising the freed slaves “to remain quietly in their homes and work for wages.” But many former slaves — recognizing the repression and destitution they would face in postbellum Texas — chose to leave, abandoning their plantations to travel for the first time as free people.
The mass exodus of freed slaves from Texas and other Southern states would only gain momentum over the next few decades, eventually culminating in the Great Migration of the twentieth century, during which as many as 6 million black Americans relocated to the North and West.
The Juneteenth Day celebration traveled with them.
Today, Juneteenth is celebrated all over the country, with cities as distant from Texas as Portland, Maine and Anchorage, Alaska hosting outdoor celebrations featuring Texan barbeque and strawberry soft drinks.
One of the largest Juneteenth Day celebrations outside of Texas takes place in San Francisco. According to local lore, community leader and Texas transplant Dr. Wesley Johnson inaugurated the tradition in 1951 by donning a Stetson hat and riding a white horse down Fillmore Street.
Milwaukee, Minneapolis, and Tulsa are also home to especially strong Juneteenth traditions, joining communities all over the country in celebrating the holiday with parades and street festivals.
But despite these widespread celebrations — not to mention the monumental historical importance of June 19, 1865 — Juneteenth Day still isn’t a national holiday.
A Day Free From Work
Early Juneteenth celebrations were often disrupted by gangs of white supremacists, who objected to poor black laborers — many of whom were still tied to the land as sharecroppers — excusing themselves from a day of work to celebrate their liberation.
In Texas, the years following General Granger’s announcement were characterized by a violent counterrevolution — between 1865 and 1868, more than four hundred freedmen were murdered by white settlers, and a delegate to the all-white constitutional convention in 1866 characterized “the permanent preservation of the white race” as “the paramount object of the people of Texas.”
Some municipalities even banned the holiday altogether, prohibiting black citizens from congregating in public places like parks. Most Juneteenth Day celebrations took place secretly in fields far outside of town or in the privacy of black churches.
But the celebration endured.
In 1980, Texas lawmakers voted to officially designate June 19 a state holiday. Today, forty-five other states have similar laws on the books, recognizing Juneteenth as a day of observance, if not a bona fide holiday.
But the Federal government still hasn’t established Juneteenth Day as a national day of celebration, despite a longstanding campaign advocating that status. Such an act is long overdue.
Still, black Americans all over the country will come together today to mark the occasion. Some, like Paul Herring of Flint Michigan, note that the federal government seems more willing to acknowledge a day commemorating black tragedy — the assassination of Martin Luther King, Jr — than a day celebrating black freedom.
”When I think of Martin, I can’t help but see the dogs and the sticks and the little girls in the church,” he told the New York Times in 2004. ”But when I think of Juneteenth, I see an old codger kicking up his heels and running down the road to tell everyone the happy news.”
”This is our day to be happy,” he said. ”I’m glad as hell that the US got its freedom on July Fourth, but were my ancestors free that day? I don’t think so.”
The abolitionist triumph over the planter class stands among the world’s most significant victories against oppression.
Today, we celebrate the end of slavery in America and remember that, through struggle, a better world is possible.
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ast year around election time, I sent a clip of Infowars lunatic Alex Jones to a friend. It was one of the ultimate Jones set pieces: his classic "gay bomb" rant, where the balloon-faced TV host turns baboon-ass red working himself up into a rage about Pentagon-designed hormonal weaponry that supposedly can "turn the frickin' frogs gay!"
