RSN: Adam Serwer | If It Were Anyone Else, They'd Be Prosecuted
03 September 22
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A revealing photo removed any remaining ambiguity.
When the search of Trump’s home by the FBI was first announced, conservatives howled that the former president was a target of political persecution. That accusation was without basis, but it was also not impossible that the bureau might have abused its powers in its pursuit of a warrant to search Trump’s home. In truth, Trump’s defenders seemed less convinced by their accusations against the FBI than by their own conviction that Trump himself is above the law.
Retaining classified documents is not even close to the worst thing Trump has done. We are, after all, speaking of a man who twice tried to subvert the democratic process, first by using foreign aid in an attempt to blackmail Ukrainian President Volodymyr Zelensky into falsely implicating then–Democratic rival Joe Biden in a crime, and later by attempting to use a mob to seize power by force after bureaucratic means failed. But those were both overtly political acts, subject to distortions of perception and emphasis, and this one is rather more straightforward. It is illegal to “knowingly” remove “such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location.” The photograph of documents emblazoned secret removes any ambiguity as to whether Trump was in possession of classified documents. If it were anyone else, they would be prosecuted.
If that claim sounds familiar, it’s because Republicans once offered a similar refrain about Hillary Clinton, Trump’s Democratic rival in the 2016 election. Trump led crowds in chants of “Lock her up!” demanding that Clinton be imprisoned for her mishandling of classified information in email communications. Republicans, at the time, considered the mishandling of such information very serious, as did the press, which devoted front-page coverage to the federal investigation into the matter in the months leading up to the election. Indeed, since the Trump revelations, right-wing media outlets like Fox News have compared Trump’s treatment unfavorably with Clinton’s, suggesting that she got off easy.
David A. Graham: Trump can’t hide from the Mar-a-Lago photo
Then–FBI Director James Comey’s decision to break the bureau’s guidelines, on more than one occasion, in order to speak directly to the press about the Clinton investigation arguably doomed Clinton’s campaign; it’s hard to contend that she got off easy. But Comey’s explanation for why Clinton was not ultimately prosecuted helps illuminate the seriousness of what Trump did.
Comey famously declared that Clinton and others at the State Department had been “extremely careless in their handling of very sensitive, highly classified information.” He did not recommend prosecution, however, because as he reviewed the relevant precedents, he found that “all the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.”
Notably, Trump’s decision to retain classified information in the infamously insecure Mar-a-Lago resort, even after the National Archives asked for it back, meets a plain-English standard of “clearly intentional and willful mishandling,” exposing information in such a way as to support an inference of intentional misconduct, and efforts to obstruct the investigation.
However, the standard Comey described is no longer the law. That’s because as president, Donald Trump signed a law removing any ambiguity about intent when mishandling classified information. It is not simply that Trump’s behavior here was worse than Clinton’s; it’s that he rewrote the law to make the standard higher and then violated both the one described by Comey and the higher standard he set himself.
Because the apparent violation of the law here is so straightforward, Trump sycophants are left with the argument that as president, Trump could declassify the documents in question like a rabbi saying the blessing over the wine, without ever having to issue a written order or go through any kind of formal process. Not only is this ridiculous as a legal matter, but it is an argument that may age as poorly as the idea that the FBI had no predicate for seeking a warrant to search the residence. It also more or less reiterates the bedrock principle of many Trump defenders, which is that the law is meant to be enforced only against certain categories of people, among whom Trump is not included.
Almost as soon as news of the search broke, centrists fearful of its political implications have argued that, even if the evidence against Trump is overwhelming and incontrovertible, and the crimes uncovered deeply serious, the former president should remain immune to prosecution because he retains a certain level of popular support. This argument also seems to be applied only to conservative political factions, perhaps reflecting the belief that they represent the true soul of the nation and are therefore its only legitimate representatives, even if they are greatly outnumbered.
Beyond the obvious objection that this would grant any political figure with a sufficiently violent following immunity from the law, this approach would not even purchase the civic peace it seeks. A hard-core group of Trump ideologues simply does not accept the legitimacy of elections it does not win, and is willing to use violence if necessary to ensure its political will is done. The sentiment is not confined to fringe internet types or squirrelly survivalists; Senator Lindsey Graham of South Carolina warned that prosecuting Trump would lead to “riots in the streets,” a grim prediction that could be interpreted as a veiled threat.
If Trump has committed a prosecutable federal crime, refusing to prosecute him will not solve this problem. Quite the contrary, it would encourage his more radical followers by making clear that they can intimidate the majority into bending to their demands.
This is not to say that prosecuting Trump would solve this dilemma either. There are no quick and easy solutions to any of the problems presented by a large segment of the population embracing the authoritarian belief that only their political faction can legitimately hold power. But if the law itself must bend to threats of political violence, then the democracy you are trying to preserve is effectively already lost.
We also know that offering Trump impunity will not resolve the matter. Republican senators protected Trump from accountability both times he was impeached, and he has repaid their gesture by attacking the democratic process and encouraging his more violent supporters. Trump spent yesterday on his social network, Truth Social, demanding that a new election be held and retweeting the deranged sentiments of his personality cult, one that has replaced the rapture with a bloodthirsty scenario in which its political opponents are swept away in an orgy of mass murder. I have no illusions that a prosecution of Trump would be some sort of unifying act. But giving Trump a pass won’t work; we know because we already tried it.
A Ukrainian soldier guards his position. (photo: Mstyslav Chernov/AP)
Both sides have claimed battlefield victories in the initial days of what Ukrainians described as a potential turning point in the war.
Ukraine’s southern command spokesperson, Natalia Humeniuk, said Ukrainian troops destroyed ammunition depots and pontoon bridges to hamper the movement of Russian reserves.
Gunfire could be heard near the city centre of Kherson, according to local media reports.
“Our successes are convincing and soon we will be able to disclose more information,” said Humeniuk.
Moscow has denied reports of Ukrainian military progress and said its troops routed Kyiv’s forces.
The Ukrainian army is releasing little news on the progress of the counteroffensive it launched at the start of the week in the Kherson region.
It reported two links used by the Russians to cross a river had been hit. The bridges are significant for resupplying Russian forces to the west of the Dnieper river, on which Kherson lies.
Both sides have claimed battlefield successes in the initial days of what Ukrainians described as a potential turning point in the war.
Zero gas flows
Meanwhile, Ukraine’s general staff on Friday said Russian forces had shelled dozens of cities and towns including Kharkiv – Ukraine’s second-largest city – in the north and the Donetsk region in the east.
Since Russia’s February invasion, more than seven million people have fled Ukraine, thousands have been killed, and cities reduced to rubble in what Kyiv and the West call Russia’s “unprovoked war of aggression”.
Moscow calls its actions a “special military operation” to halt NATO’s expansion in surrounding countries, rid Ukraine of nationalists and protect Russian-speaking communities.
The developments on Saturday came as Moscow and Kyiv traded blame over actions at the Russian-occupied Zaporizhzhia nuclear power plant, where United Nations inspectors arrived on Thursday on a mission to help avert a radiation catastrophe as the facility has repeatedly been attacked.
Turkish President Tayyip Erdogan told Russian President Vladimir Putin in a phone call his country can play a facilitator role regarding the Zaporizhzhia nuclear plant.
Vladimir Rogov, a pro-Russian official in the Zaporizhia region, said Ukrainian forces shelled Europe’s largest nuclear plant several times, and the main power line to the station was downed, forcing it to use reserve power sources, as occurred last week.
Russian energy giant Gazprom, meanwhile, has delayed resuming gas deliveries, a move deepening Europe’s problems securing fuel for winter with living costs already surging.
Nord Stream 1, which runs under the Baltic Sea to supply Germany and others, was set to restart operating after a three-day halt for maintenance on Saturday, but the pipeline operator reported zero flows hours later.
Moscow has blamed sanctions, imposed by the West after Russia’s February 24 invasion of Ukraine, for hampering routine operations and maintenance of Nord Stream 1.
‘Most serious situation’
A UN inspection team, led by International Atomic Energy Agency (IAEA) chief Rafael Grossi, braved intense shelling to reach the Zaporizhzhia plant.
“This is not the first time that an IAEA team has gone into a situation of armed hostilities,” said Tariq Rauf, the organisation’s former head of verification and security, noting the IAEA sent inspectors to Iraq in 2003 and to the former Soviet Republic, Georgia, during fighting.
“But this situation in Zaporizhzhia, I think it’s the most serious situation where the IAEA has sent people in ever, so it’s unprecedented.”
Grossi, after returning to Ukrainian-held territory, said the physical integrity of the plant had been violated several times. A report was expected early next week and two IAEA experts are staying on at the plant for the longer term.
“There were moments when fire was obvious – heavy machine guns, artillery, mortars at two or three times were really very concerning, I would say, for all of us,” Grossi said of his team’s journey through an active war zone to reach the plant.
‘Demilitarise the station’
The situation is further complicated by the Russian occupation of the nuclear power station. The site sits on the south bank of a huge reservoir on the Dnieper river, 10km (six miles) across the water from Ukrainian positions.
Each side has accused the other of shelling near the facility, which is still operated by Ukrainian staff and supplies more than one-fifth of Ukraine’s electricity in peacetime. Kyiv also accuses Russia of using it to shield its weapons, which Moscow denies. Russia has so far resisted international calls to pull troops out of the plant and demilitarise the area.
Ukrainian President Volodymyr Zelenskyy urged the IAEA team to go further than inspections and report writing.
“Unfortunately we haven’t heard the main thing from the IAEA, which is the call for Russia to demilitarise the station,” Zelenskyy said in a video.
Commando-style raid?
Russian defence minister Sergei Shoigu said Ukraine was continuing to use weapons from its Western allies to shell the plant. He rejected assertions by Kyiv and the West that Russia had deployed heavy weapons at the plant.
Several towns near the plant came under Russian shelling on Thursday, a regional council mayor, Mykola Lukashuk said.
Rogov, the pro-Russian official, said Ukrainian forces shelled Enerhodar, the Russia-held town near the power station. He repeated accusations that Ukraine mounted a commando-style raid on the facility with speedboats on the river. Ukrainian officials dismissed that as a fabrication.
Senate Minority Leader Mitch McConnell. (photo: Alex Wong/Getty Images)
The Senate minority leader and the billionaire venture capitalist each say the other should be subsidizing Blake Masters in the final months of his campaign
Thiel demurred, according to a person familiar with the May exchange who, like others interviewed for this article, spoke on the condition of anonymity to describe private discussions.
Three months later, when Blake Masters — whose bid Thiel had also backed to the tune of $15 million — won his Aug. 2 primary in Arizona, McConnell placed no such call.
In the ensuing weeks, a high-stakes game of chicken would play out between McConnell and Thiel, culminating in a move last Friday by a super PAC linked to the minority leader, the Senate Leadership Fund, to abandon about $8 million worth of TV, radio and digital ads originally booked to boost Masters. The move was preceded by a pair of phone calls last week in which Thiel spoke to McConnell and the Kentucky Republican’s top fundraising lieutenant, Steven Law, who heads the Senate Leadership Fund.
Details of the conversations, which have not been previously reported, shed light on ordinarily veiled negotiations with major donors critical to the battle for the Senate. They also illustrate McConnell’s vexed relationship with candidates elevated by former president Donald Trump and donors, such as Thiel, sympathetic to Trump’s worldview.
Thiel, a co-founder of the payment processor PayPal and the first outside investor in Facebook, bucked left-leaning Silicon Valley by betting big on Trump in 2016. Last summer and fall, the tech entrepreneur contributed to a wide range of pro-Trump congressional candidates, igniting hopes among some Republicans that he was positioning himself to become a megadonor on the scale of libertarian brothers David and Charles Koch, or former New York mayor Mike Bloomberg, who has given millions in recent years to Democratic candidates and causes. But Thiel has told associates that he has no plans to spend more this cycle — and that his aim was to elevate younger Republican candidates who would mark a sharp break from the party’s neoconservative wing, not to engage in a tit-for-tat spending war with Democrats.
That hasn’t stopped Republican leaders from coming calling.
McConnell told Thiel over the phone last week that Vance’s race in Ohio was proving more costly for the Senate Leadership Fund than anticipated, that money was not unlimited and that there was a need for the billionaire to “come in, in a big way, in Arizona,” as a person familiar with the conversation described his words. Law, in a call with Thiel the day before his group cut back on the Arizona ads, expressed concern about Masters as a candidate and pessimism about his campaign’s viability. Both Vance, 38, and Masters, 36, are friends and former business associates of Thiel’s; Masters stepped down from roles at Thiel’s investment firm and foundation this year.
The message from McConnell and Law, according to people with knowledge of their pitch, was that they should essentially split the cost, with Thiel cutting a check to their super PAC matching whatever funds they put behind Masters. Another option, these people said, was that the Thiel-funded super PAC could take over the ad reservations initially made by the McConnell-linked group.
Thiel indicated to them that he was not interested in such arrangements — a posture, say people around the venture capitalist, that is informed by his approach of investing early and a belief that any more of his money would be used as a Democratic talking point; he is still hosting fundraisers for Masters in the coming weeks.
McConnell previously expressed dissatisfaction with Thiel’s move to bankroll independent super PACs backing Vance and Masters, telling the billionaire investor last year that his money would go further if he gave it to the Senate Leadership Fund, which “can put some real lead on the target,” recalled a person familiar with the exchange.
In last week’s call with McConnell, Thiel argued that Vance and Masters have not criticized the Republican leader, unlike other GOP primary candidates, which drew a dissent. “That’s not true at all,” McConnell replied, according to a person with knowledge of his comments, though he added, “I’m not into revenge. That’s Mr. Trump.”
During his primary, Masters called for McConnell to be replaced as GOP leader, expressing his support for Sens. Josh Hawley (R-Mo.) and Tom Cotton (R-Ark.). “I’ll tell Mitch this to his face,” Masters said during a debate in June. “He’s not bad at everything. He’s good at judges. He’s good at blocking Democrats. You know what he’s not good at? Legislating.” Vance has also offered a dim view of McConnell, calling him “a little out of touch with the base” and saying it was time for “new blood.”
A spokesman for the Senate Leadership Fund and a McConnell adviser both declined to comment. A spokesman for Thiel also declined to comment. The fact that the two had spoken was earlier reported by Puck News.
Among people close to the Masters campaign, there was disbelief that McConnell’s group would back off a race seen as critical to winning a Senate majority. Meanwhile, some Republicans were flabbergasted at the idea that Thiel would sit out the general election after investing so heavily in his preferred candidate’s primary bid.
“I don’t understand the logic of spending $15 million to help Blake Masters in the primary and then [letting] him twist in the wind against one of the best funded U.S. Senate candidates in history,” said a Republican consultant tracking the Senate race, who spoke on the condition of anonymity to offer a candid assessment. He lamented what he called “unforced errors,” including Masters’s shifting stance on abortion and his suggestion during a debate that “maybe we should privatize Social Security.”
Arizona should be one of the GOP’s best pickup opportunities in the Senate, the consultant said. “Problem is, there’s a candidate who was undisciplined and is offering an immense amount of fodder for Democrats to pick apart.” Now, he said, “I think it’s going to take a massive shift in the national mood to make this race competitive.”
Sen. Mark Kelly, the Democratic incumbent in Arizona, had nearly $25 million on hand in his main campaign account as of the middle of last month. Masters, by contrast, had $1.5 million in his main account.
Masters has recently been calling donors to Arizona Gov. Doug Ducey (R) with success, according to people familiar with his activities, and plans to attend numerous out-of-state fundraisers in September. Those include at least two hosted by Thiel, one in Los Angeles and one in Miami that is being co-hosted by Keith Rabois, an investor and early executive at PayPal who is involved in multiple fundraising events for Masters, some with additional Republican candidates.
The Senate Leadership Fund still has $8 million booked in Arizona for October, and an affiliated nonprofit group called One Nation is spending an additional $1.1 million there.
The National Republican Senatorial Committee recently canceled airtime worth about $2 million in Arizona, before rebooking some ads in the state, amid a broader cash crunch. The NRSC and the Masters campaign jointly placed broadcast ads amounting to $119,000 and $67,000 on cable, according to data from the tracking firm AdImpact.
While recent polling has shown Masters trailing Kelly, the Cook Political Report, a nonpartisan group analyzing elections, still calls the Senate race a toss-up.
The Senate Leadership Fund’s decision to cut its Arizona investments — along with McConnell’s recent comments that “candidate quality” matters — have signaled that Washington Republicans do not view the Masters race as a good investment, said Stan Barnes, a GOP strategist in Arizona. A lack of further investment from Thiel, said Barnes, would remove a key pillar of Masters’s success.
“Blake Masters got to be the Republican nominee for two reasons — Peter Thiel’s money and Donald Trump’s endorsement,” he said. Trump’s leadership PAC, Save America, gave the maximum $5,000 allowable to the Masters campaign this summer but has not contributed to the Thiel-funded super PAC backing him, called Saving Arizona.
Masters’s support, Barnes said, “is built around the ‘America First’ movement and people generally upset with how things are going — it’s not built on likability or name ID or familiarity with the person.” With Masters “relatively quiet” on the airwaves, Barnes said, “it does not feel like a hot, energetic campaign.”
Still, Barnes argued that with “so much wind at the back of Republicans, so much anger at the Biden White House … Blake still could be carried over into the winner’s circle.”
Zachery Henry, a spokesman for the Masters campaign, declined to comment on the Senate Leadership Fund’s decision to cancel investments, Thiel’s thinking about the general election or others’ assessments of the race.
Masters brought on several new hires around the time of the primary, including Henry and a new campaign manager — Daniel Bell, a Florida attorney and friend of Masters’s from Stanford Law School.
Campaign advisers urged Masters to be more careful with his words during the primary, according to a person familiar with the conversations, but Masters resisted the idea of being “scripted.” Democratic attack ads have centered on Masters’s comments on Social Security and abortion, despite the candidate’s efforts to walk back his words.
“I shouldn’t have said ‘privatize,’” Masters said in July. “I don’t think we should like mess with Social Security.” In an interview with the Arizona Republic shortly after winning the GOP nomination in August, Masters called Arizona’s 15-week ban on abortion a “reasonable solution” and said he supports a nationwide ban specifically for third-trimester abortions and “partial-birth abortion.”
During the primary, he suggested support for a much stricter national ban.
“If we got a personhood amendment, even if it was at, you know, two months or three months … it would still save hundreds of thousands of lives a year,” he said early this year. Asked last year on One America News if he would support a national ban similar to an Arizona law dating back to the 1800s that “bans all abortions,” Masters said yes.
Redacted pages from the affidavit by the FBI in support of obtaining a search warrant for former president Donald Trump's Mar-a-Lago estate. (photo: Jon Elswick/AP)
CNN's KFile reviewed comments from the former President, dating back to his first presidential campaign in 2016, from speeches, interviews and comments made on social media.
The former President is in potential legal jeopardy after the Justice Department's search of his Mar-a-Lago residence last month retrieved more than 100 classified documents, with the DOJ alleging that US government documents were "likely concealed and removed" from a storage room at the Florida resort as part of an effort to "obstruct" the FBI's investigation. More than 320 classified documents have now been recovered from Mar-a-Lago, the Justice Department said, including more than 100 in the FBI search earlier this month.
Speaking in 2016 about the government's decision not to charge Hillary Clinton with crimes related to their investigation into her handling of classified material and use of a private email server while she was secretary of state, then-candidate Trump repeatedly promised that his administration would strictly enforce all rules regarding classified material.
"On political corruption, we are going to restore honor to our government, '' Trump said in August 2016. "In my administration, I'm going to enforce all laws concerning the protection of classified information. No one will be above the law."
"One of the first things we must do is to enforce all classification rules and to enforce all laws relating to the handling of classified information," he said in September 2016.
Speaking in July of that year, Trump said Clinton's mishandling "disqualifies" her from public service.
"Any government employee who engaged in this kind of behavior would be barred from handling classified information," Trump said. "Again, that alone disqualifies her."
It isn't just Clinton who Trump has criticized, he also repeatedly called for the jailing of other opponents for what he said was the mishandling of classified material.
In 2017, when calls between Trump and foreign governments were leaked, along with communications between incoming National Security Advisor Michael Flynn and foreign governments, Trump suggested those responsible for the leaks should go to prison.
"That is the most confidential stuff," Trump said. "Classified. That's classified. You go to prison when you release stuff like that."
Trump also said several times that former FBI Director James Comey should be "prosecuted" in tweets pushing unfounded accusations that Comey disclosed classified information. A DOJ inspector general report found "no evidence that Comey or his attorneys released any of the classified information contained in any of the memos to members of the media." The IG's office referred the findings of its report to the Justice Department for possible prosecution and prosecutors declined to bring charges.
"He leaked CLASSIFIED information, for which he should be prosecuted," one Trump tweet in April 2018 said, with another saying Comey should be in jail.
Trump also repeatedly and strongly called for the prosecution of his former National Security Adviser John Bolton. Following the publication of Bolton's memoir from his time in the Trump White House, "The Room Where It Happened," Trump said that the book contained classified information.
A federal judge involved in one of the Bolton cases did find that he likely put national security at risk with his book, but the judge also rejected the Trump administration's attempt to block the book's publication.
In 2020, Trump told Fox News that Bolton should go to jail for "many, many years" for releasing the memoir.
"Classified information; he should go to jail for that for many, many years," Trump said.
In an interview with Greta Van Susteren, Trump again called for Bolton's imprisonment.
"Here's what he did: He released classified information, highly classified information and confidential information, all different categories," Trump said. "John Bolton should never have been allowed to do that. You know, the young sailor that sent a picture home to his mother and other people. They go to jail for a long period of time. You can't do that. And that was not nearly as vital, as important, as John Bolton."
Trump tweeted in June 2020 that Bolton was "washed up" until Trump hired him.
"I brought him back and gave him a chance," the tweet read. "[He] broke the law by releasing Classified Information, in massive amounts. He must pay a very big price for this, as others have before him. This should never to happen again!!!"
Trump later said in an interview with Brian Kilmeade that regardless of if Bolton unknowingly leaked information in his book "he should go to jail."
A Justice Department probe into Bolton was dropped in 2021, and he told CNN's Wolf Blitzer on "The Situation Room" last year that his book "did go through a pre-publication review process" and that it "was cleared by the expert team that reviewed it, arduously."
For his part, the former President has insisted that he declassified all of the documents seized in the FBI's search of Mar-a-Lago, claiming in a statement that he had a "standing order" saying "that documents removed from the Oval Office and taken to the residence were deemed to be declassified the moment he removed them."
The search warrant released by the Justice Department identified possible violations of three laws, none of which are solely dependent on if the information was classified.
In a court filing on Tuesday night, the Justice Department alleged that government documents were also "likely concealed and removed" from a storage room at Mar-a-Lago as part of an effort to "obstruct" the FBI's investigation into Trump's potential mishandling of classified materials.
In response, Trump acknowledged in a court filing Wednesday that classified material was found at Mar-a-Lago in January, but argued that it should not have been cause for alarm -- and should not have led to the search of Trump's Florida residence earlier this month.
McKinley 'Mac' Phipps Jr. was convicted of murder despite no physical evidence linking him to the crime. (photo: Sheila Phipps)
Rappers have long had their music used as evidence against them in criminal trials. California could soon limit the practice
A 19-year-old had been shot at a Slidell, Louisiana club where Phipps was due to perform, and police quickly zeroed in on the artist as the suspect. A man who was working security at the venue confessed that he had killed the teenager, but still prosecutors pushed forward with a trial against Phipps.
Authorities had no physical evidence or weapon tying Phipps to the murder, but they had something else to bring to court: Phipps’ rap lyrics.
“‘Murder, murder, kill, kill’; ‘Pull the trigger, put a bullet in your head.’ Those are some of the lyrics that this defendant chooses to rap when he performs,” the prosecutor told an all-white jury, according to a recent NPR report.
Phipps was convicted and given a 30-year sentence.
Last week, California lawmakers passed new regulations meant to restrict such use of rap lyrics as evidence in criminal court, the first-of-its-kind legislation expected to become law in the US.
Experts say that although the impact of the new policy will be narrow, it is a step forward in putting guardrails on a prosecutorial practice that all too often has worked to criminalize the artistic expression of young Black and Latino men.
As prosecutors in Georgia face growing scrutiny over their use of rap lyrics in recent gang conspiracy cases against Gunna and Young Thug, advocates and artists hope the reforms will help expose the tactic.
“We’ve got a long way to go. There are people still sitting in prison who have been affected by this,” said Phipps, who was released last year after two decades in prison. “It’s an attack on free speech and particularly Black art.”
‘It’s effective for prosecutors’
Researchers have tracked more than 500 reported cases of prosecutors using rap music as evidence against defendants in the last 30 years, though that number is likely a significant undercount.
The practice started to surge in the 2000s, when authorities began to rely on social media in cases against amateur rappers, and when law enforcement “gang units” escalated their crackdown, said Erik Nielson, a University of Richmond professor and co-author of Rap on Trial.
The lyrics are typically cited to suggest “gang affiliation”, proof of crimes and intent, or demonstrate a rapper’s “violent” character or threats, and the strategy was used against famous artists like Snoop Dogg in the 1990s, Drakeo the Ruler in 2018 and Tekashi 6ix9ine in 2019.
Jack Lerner, University of California, Irvine law professor and an expert on the subject, said the tactic is used across the US, pointing to a 2004 manual of the American Prosecutors Research Institute, which encouraged the use of lyrics in search warrants and trials to “invade and exploit the defendant’s true personality” and present him as a “criminal wearing a do-rag and throwing a gang sign” to contrast the “nicely tailored … altar boy” in the courtroom.
Although there are rare cases where words or music videos may be linked to specific criminal offenses, experts say research shows their use in court has often worked to prejudice jurors against young men of color.
Multiple studies have found that associating defendants with rap music creates a strong negative bias in jurors and that people are significantly more likely to perceive lyrics as violent, offensive, threatening, dangerous and literal if they are from rap, compared to other genres.
“As soon as you introduce rap, you’re compromising the defense’s ability to have a fair trial,” Lerner said.
Researchers have also found widespread examples of prosecutors taking lyrics out of context, presenting them in inaccurate and misleading ways, treating fictional lines as facts or confessions and using music to expand charges and secure convictions and lengthy sentences.
“Prosecutors talk to each other and see this is a very effective tactic, and that it’s unlikely to be reversed on appeal. So why wouldn’t you do this if your goal is to lock people up, whether they’re guilty or not?,” said Nielson, the University of Richmond professor. He wrote about a 2013 California murder trial in which prosecutors tried a 14-year-old boy as an adult, claiming lyrics in his notebook were “autobiographical journals”, including lyrics from other artists’ which were erroneously attributed to him.
In the case of Mac Phipps, prosecutors presented the artist’s lyrics as evidence he was a criminal, despite overwhelming evidence that he was innocent.
Witnesses who had testified against him later signed affidavits saying police had coerced them to lie, including by threatening them with arrest. Last year, the Louisiana governor granted Phipps clemency, which did not overturn his conviction but allowed him to come home after 21 years.
“It was so surreal,” Phipps, 45, said about hearing prosecutors recite his lyrics in court. “Hip-hop was my way of dealing with city life, it was my livelihood, it was how I took care of my family. To have my art used against me in court, I felt like I had been smacked in the face by the very thing I loved so much.”
The song that prosecutors cited, Murda, Murda, Kill, Kill, was co-written with another artist “as a battle rap and play on words of a military cadence, like when soldiers are marching”, he explained. “It was basically declaring my lyrical dominance over other rappers.”
“I had no criminal record, no prior incidents or violence in my past, so all they could turn to, from their perspective, was the song lyrics. And for them it was effective in actually convicting someone who was innocent.”
Phipps also questioned whether members of groups such as The Killers or The Chicks (who penned the lyrics, “Earl had to die”) would have their work used against them in court.
“What most rappers say is either straight fiction or highly exaggerated. We’re artists. You don’t have to paint reality with art. You can paint the world as you’d like to see it. Art gives us an opportunity to escape from reality. And when that escape mechanism is criminalized, that’s an atrocity,” he said, adding, “I’m still trying to find my voice after being silenced for 21 years.”
‘I’m gonna say what I want’
The new California law places limits on when prosecutors can cite defendants’ “creative expression” in court. It applies to all genres of music, dance, film and other art forms, though the law acknowledges that using rap lyrics in particular creates a substantial risk of prejudice.
The law requires judges to hold a hearing without the jury present to consider the admissibility of the evidence and whether it would “inject racial bias into the proceedings”.
A pending bill in New York introduced earlier this year would prohibit rap lyrics unless there was “convincing proof that there is a literal, factual nexus between the creative expression and the facts of the case”.
Federal lawmakers have introduced legislation similar to California’s bill, and the Recording Academy and major labels have backed the reforms.
Nielson, the researcher, said he hoped California’s law would expand public awareness around the issue, but was skeptical it would have a major impact on preventing the wrongful use of rap lyrics, since judges can still approve the practice after a hearing.
Reggie Jones-Sawyer, the California state representative behind the bill, said legislators had to leave some “wiggle room” so that defendants’ work could still be cited when it was relevant, and so that it would be palatable to the courts and the governor. “This is a way to stop overzealous prosecutors from using creative expression, which should never be prohibited.”
Jones-Sawyer’s bill passed the California senate and assembly, and the governor has until the end of September to sign it into law.
The California District Attorneys Association said it did not take a stance on the bill.
Brandon Duncan is a San Diego rapper known as Tiny Doo who prosecutors accused of gang conspiracy in 2014, citing his lyrics as evidence he was connected to crimes he did not commit. Duncan said he was overwhelmed with joy over the passing of the legislation.
Duncan spent eight months in jail before a judge dismissed the charges.
When he got out of jail, he was nervous to start making his music again, he said. “It got to a point where I didn’t want to do it anymore,” he said. “But then, I said fuck that, I’m gonna make what I want and say what the fuck I want to say. I’m going to be as creative as I want to be. I’m not out here hurting nobody or doing anything illegal. Leave me alone.”
“When people get together and fight for something, they hear us. We’ve come a long way from them telling me they could put me in jail for the rest of my life because of my rap lyrics.”
Gen. Augusto Pinochet at the funeral of four of his bodyguards in Santiago, Chile, Sept. 10, 1984. (photo: Alexis Duclos/Gamma-Rapho/Getty Images)
The potential state-of-the-art Magna Carta was drafted by an equal number of women and men and is a victory for small-d democrats.
I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors.
While it’s gotten little attention in the U.S., Chile is currently putting Jefferson’s views into action. This Sunday, September 4, the country will vote on whether to adopt an entirely new constitution written by a convention last year.
Current polls suggest that the new constitution may be voted down, with support having fallen precipitously since the beginning of the year amid widespread disinformation. One recent survey showed that 37 percent of Chileans approved of it and 46 percent did not. However, voting is compulsory for all Chileans not overseas, and enough remain undecided to tip the balance. The perceived stakes are high enough that forces rejecting the new constitution ran over pro-constitution cyclists with a horse and carriage.
The proposed constitution is quite long — arguably too long, since complexity is always useful for the powerful — with 388 articles. Highlights include:
- A requirement that membership of all “collegiate bodies of the State” be at least half women, as well as the boards of all companies owned or partially owned by the government.
- A new, lower voting age of 16. Moreover, voting “constitutes a right and a civic duty,” and so voting would become compulsory for everyone 18 and over. (Voting previously was compulsory in Chile until 2012. Voting in regular elections is no longer compulsory, but the current constitutional referendum is a special case.) Also, foreigners can vote in all Chilean elections once they’ve lived there for five years.
- Everyone has the right “to make free, autonomous and informed decisions about one’s own body, [including] reproduction” — i.e., the right to abortion. Until 2017, abortion was illegal in Chile under all circumstances, and it is still only permitted in rare cases.
- Special provisions governing water, which is mentioned 32 times. Everyone has “the human right to water and sufficient, healthy, acceptable, affordable and accessible sanitation,” and “it is the duty of the State to guarantee it.” Chile has been suffering from a disastrous megadrought for a decade, likely caused by global warming and certainly exacerbated by voluminous water use by its mining and agriculture industries.
- The state will have the duty “to stimulate, promote and strengthen the development of scientific and technological research in all areas of knowledge.”
- New power and representation for Chile’s Indigenous population, who make up about 10 percent of the country’s citizenry.
But the significance of the proposed constitution is not simply its specifics. Whatever the outcome of the vote, the fact that it’s gotten this far is a vivid illustration of how regular people can generate an explosion of political imagination if they ever get the opportunity. And if the constitution is adopted, it will inevitably expand the imagination of regular people in Latin America and elsewhere — just as American leaders have long feared.
American corporations and the U.S. government have enthusiastically meddled in Chilean politics for centuries, but our involvement intensified during the 1950s and 1960s. In particular, successive U.S. administrations were anxious to prevent Salvador Allende, a popular socialist politician, from being elected president. After Allende narrowly lost the 1958 contest to the conservative, wealthy Jorge Alessandri, the U.S. spent heavily to support Alessandri’s government. When Allende ran again in the next election in 1964, the U.S. successfully went all-out to stop him from winning, with a huge investment of funds funneled into Chilean politics via the CIA and the U.S. Agency for International Development.
But Allende ran for president yet again in 1970, and on September 4 of that year, the worst nightmare of the U.S. came to pass: He won. The Nixon administration was desperate to prevent him from taking office. Their panic can be gauged by notes taken soon afterward by Richard Helms, then the director of the CIA: “1 in 10 chance perhaps, but save Chile!; $10,000,000 available, more if necessary; full-time job — best men we have; game plan: make the economy scream.” The next day, Nixon’s secretary of state, Henry Kissinger, warned American newspaper editors off the record that Chile could be a “contagious example” that would “infect” U.S. allies in Europe.
Despite this, Allende was sworn in. Nixon and company did not give up, however, conducting an enormous covert campaign to undermine Allende’s government. On September 11, 1973, a military junta led by Chilean Gen. Augusto Pinochet seized power, with Allende dying under murky circumstances in the presidential palace. The coup does not seem to have been directly organized by the U.S., but it’s obvious that we created the conditions that made it possible, and the plotters knew that America wouldn’t mind at all if they took over.
Pinochet’s new regime swiftly rounded up troublesome Chileans, killing over 3,000 of them. Meanwhile, his economic team — nicknamed the “Chicago Boys” due to the education many of them had received in right-wing economics at the University of Chicago — moved to restructure the Chilean economy. This was a success, in that both poverty and corporate profits (Chilean and American) increased.
Chile’s first real constitution had been instituted in 1833 and then was replaced by a new one in 1925. Within days of taking power, Pinochet’s government had begun to consider creating yet another. In 1980, it held a plebiscite on what it had come up with. Sixty-five percent of voters approved the new constitution, with the help of thousands of the government’s secret police casting multiple ballots.
The 1980 constitution was an attempt by the junta’s intellectuals to insulate the country’s economic functioning from any future eruptions of democracy. It forbid union leaders from participating in “political partisan activities” and gave the president the power to suspend “the rights of association and unionization” and generally “determin[e] the cases where bargaining is not permitted.” Notably for today, it also granted the “rights of private citizens over waters.”
This worked, to some degree. Pinochet was eventually extracted from power via plebiscite, and the country returned to formal democracy. Then Chile elected a liberal doctor named Michelle Bachelet as president in 2006 (and then again in 2014). Bachelet’s father had been tortured to death by Pinochet’s agents, and she herself underwent less severe torture. But while she managed to reach the top level of political power in Chile, several of her initiatives were struck down as unconstitutional by Chile’s Supreme Court.
The path to the potential new constitution began in 2019. Protests by secondary school students about bus fare hikes morphed into huge demonstrations by everyone focused on Chile’s extraordinary levels of inequality. Soon a new slogan spread among participants: “A new constitution or nothing.”
In 2020, the country held a referendum with two questions. First, did voters want a new constitution? Seventy-eight percent said yes. Second, should a new constitution be written solely by delegates elected by popular vote or a half-and-half mixture of current members of Congress and newly elected delegates? The mood of Chileans toward their political class can be judged by the fact that 79 percent of voters wanted the first option. In 2021, 155 delegates were elected under rules that required gender parity. The eventual winners included 77 women and 78 men. The fruit of their labors is what will be voted on this Sunday.
In 1824, eight years after Jefferson wrote about the need for constitutions to change with the times, and just two years before his death, he wrote to another friend about why political progress can be so difficult. People, he said, are
naturally divided into two parties. 1. those who fear and distrust the people, and wish to draw all powers from them into the hands of the higher classes. 2dly those who identify themselves with the people, have confidence in them cherish and consider them as the most honest & safe, altho’ not the most wise depository of the public interests … call them [whatever] name you please; they are the same parties still and pursue the same object. … Aristocrats and democrats is the true one expressing the essence of all.
What will happen now in Chile can’t be predicted. But the fact that the referendum is happening at all, and that Chile has come this close to monumental political change, demonstrates that everyday people clearly do want to participate in how their country is governed — and have a lot of ideas about how to improve things. This by itself is a huge victory for Jefferson’s small-d democrats.
The Washburn Fire near Yosemite National Park's southern entrance in Wawona, California. (photo: Stephen Lam/SF Chronicle)
Five of six climate-related bills championed by Governor Gavin Newsom passed the state legislature Wednesday, providing climate funding, limiting oil and gas wells and enshrining a 2045 carbon-neutrality deadline, among other things.
“This was a very big and historic win. It has taken this state decades to get to this point,” Democratic Senator Monique Limón from Santa Barbara said, as Cal Matters reported.
The bills passed on the last day of California’s legislative session. Newsom had encouraged lawmakers to approve the measures in the middle of August, surprising legislators who had been unable to pass some of the bills in the past, The New York Times reported.
‘We’re taking all of these major actions now in the most aggressive push on climate this state has ever seen because later is too late,” Newsom said when proposing the new bills. “Together with the Legislature’s leadership, the progress we make on the climate crisis this year will be felt for generations — and the impact will spread far beyond our borders. California will continue blazing a trail for America and the rest of the world on the swift and meaningful actions necessary for cutting carbon pollution, protecting communities and leading the clean energy future.”
Cal Matters detailed the bills that passed under the wire.
- AB 1279 confirmed California’s goal of reaching net-zero emissions by 2045.
- SB 1020 added interim renewable energy targets for retail electricity of 90 percent by 2035 and 95 percent by 2040 to meet the current goal of 100 percent by 2045. In addition, it mandated that state agencies use 100 percent clean energy by 2035, a decade earlier than previously stipulated.
- SB 905 required the California Air Resources Board (CARB) to determine steps and regulations for carbon-capture and storage projects at pollution hotspots like oil refineries.
- AB 1757 stipulated that the state set goals for removing carbon dioxide from the atmosphere through natural means like tree planting.
- SB 1137 bannned new oil and gas drilling within 3,200 feet of homes, schools, nursing homes and hospitals.
In addition, the state budget included a record-breaking $54 billion to be spent on climate programs over the next five years, The New York Times reported. It would put $6.1 billion towards electric vehicles, $14.8 billion towards public transit projects, more than $8 billion towards stabilizing the electric grid, $2.7 billion towards preventing wildfires and $2.8 billion towards managing drought.
In a slightly more controversial move, the budget also kept two nuclear reactors at the Diablo Canyon Power Plant running for another five years. Newsom argued this measure was necessary to bolster an electrical grid strained by drought and high heat without resorting to using more fossil-fuel energy, The Guardian reported. However, some environmental groups disagreed.
“Allowing Diablo to continue operating is beyond short-sighted,” Environmental Working Group President Ken Cook told The Guardian in an email. “It will only delay the state’s greenhouse gas emissions reductions goals and continue putting Californians at risk should a disaster strike the plant.”
One environmental measure that failed to pass was AB 2133, which would have upped the state’s 2030 greenhouse-gas-emission-reduction target from 40 percent below 1990 levels to 55 percent, according to Cal Matters. Some legislators were concerned that the state was not set to meet its existing target, and the bill failed by four votes.
Overall, however, Senate President pro Tempore Toni G. Atkins called the legislation that did pass “tremendous, decisive action” at a time when the state is dealing with extreme weather fueled by the climate crisis, CNN reported.
“Our state is facing the most extreme temperatures we’ve experienced this year, putting our communities, especially our most vulnerable neighbors, at risk,” Atkins said in a statement reported by CNN. “We’re also continuing to deal with an historic drought and the ongoing threat of wildfires.”
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