Public Affairs
The Immunity Ruling
The mark of an iconic Supreme Court decision is timelessness. With every read, the opinion teaches new insights and provides new lessons on our Constitution. Each semester when I prepare a case like Marbury or McCulloch, I learn something new.
Opinions from Chief Justice Roberts, however, are just the opposite. They are best read once. After the first read, you will come away entirely persuaded that Roberts’s analysis was not only the best answer (to use the Loper Bright framing), but the only conceivable answer, as any contrary positions are unfounded. That’s the first read.
But when you read a Roberts decision a a second, a third, and a fourth time, all of the fancy veneers and window dressing start to come off ….
On Trump v. United States, people I trust who’ve taken the time to work through the case (I was never a prosecutor, rarely a criminal defense attorney) say it’s going to be very hard to prosecute a President for anything. That is not the impression Justice Roberts created on first reading of his opinion.
That means, in essence, that “the President is not above the law” is substantially false now.
And that means that Trump may soon no longer be a convicted felon (because Judge Merchan admitted testimony of a sort that Justice Roberts dubiously says may not be admitted).
I guess we’ll just have to elect someone else. What crueler punishment for Trump than an emphatic electoral drubbing? (But what crueler punishment for the USA than to re-elect the zombie currently in the Oval Office?)
Some thoughts, though:
- I just about freaked out when, in law school, I learned that “immunity” was a thing. Lots of people are “above the law” in various circumstances, including crooked prosecutors, judges, policemen (“qualified immunity” in too many circumstances), trash-talking Congress
menpersons. I’ve even figured out why that’s often the lesser evil compared to no immunity. So get it out of your head that keening about “they made him above the law” communicates anything salient. - This isn’t just about Trump. It’s about all Presidents. Good luck prosecuting Joe Biden, Cheeto Benito — or Mike Pence, or Barack Obama, for that matter.
- Do you really think that none of the Presidents in your lifetime until Trump has crimed — if only to protect the country from, for instance, terrorists whose location we knew?
- That we have an ex-President who is almost certainly guilty of vile, self-serving, delusional crimes is a very, very, very sorry commentary. That his crimes commend him to so many voters is even worse.
- Just about everyone agreed that the court would extend, and should extend, some measure of immunity from criminal prosecution to our Presidents. The decisions of the lower courts that Presidents have zero immunity were surprising (likelier, shocking) and unlikely to stand. But few expected the court to give Presidents the extensive practical immunity that emerges from the weeds when you get deeply enough into them.
- The lack of constitutional language making the President immune to criminal prosecution is barely interesting, let alone dispositive. There’s no “separation of powers” clause, either and for instance, but it’s fundamental to our system and implied by what is specified.
- If and when Trump issues a lawless order, the people he orders should consider refusing to carry it out because I don’t believe they’ll ride his immunity coat-tails. I can only hope that Project 2025 hasn’t vetted a full slate of Trumpist sociopaths who’ll never threaten mass walkouts.
- We need to get it through our heads that our Presidents are, pretty much, above the law and that we should try to elect people who aren’t, for instance, promising a retributive crime spree against their adversaries.
- When Trump crimes in his second term, I hope we’ll have a Congress willing to impeach, because the Senate will no longer have the excuse that the criminal justice system can deal with it.
I don’t mean to say it will all work out okay. We’re in unchartered territory with Zombie Joe v. Cheeto Benito and his merry band of Project 2025 vandals. I’ve been bearish on the USA for quite a while now, heaven help me — the cultural equivalent of “the financial doomsayers who has correctly predicted 10 of the last three recessions” (see below).
The Unitary Executive
Not unrelated to the matter of Presidential immunity is the “unitary executive” theory.
I thought I was fairly sophisticated on matters of Constitutional Law, but an article in the New York Times lays out with unusual clarity a sort of meta-battle going on in the legal ether above some recent SCOTUS decisions: Charlie Savage, Conservative Legal Movement’s Agenda Unites Court’s Rulings on Executive Power. That’s freebie “shared link,” by the way.
It leaves me feeling freshly conflicted about the independent regulatory agencies we have. They’re “a headless fourth branch of the U.S. government” as Justice Kavanaugh once put it in his pre-SCOTUS days. But the Project 2025 vandals are not at all conflicted; they want to domesticate all regulatory agencies. That would mean that we would have even wider swings in policy from Administration-to-Administration, as far fewer career civil servants would carry over, and far fewer good people would be willing to go into low-profile career governmental service.
I highly recommend the article, and plan to re-read it at least once in a few weeks.
UPDATE: A recommended companion read for Savage is from Josh Blackman again, The Goal Of The “Architects of the Supreme Court” Was Always Overruling Chevron, and not Overruling Roe.
Bare-faced lies
Earlier this year, New York Times columnist Paul Krugman was boasting of the personal time he spent with Biden, who he proclaimed to be “completely lucid and with excellent grasp of detail”. After the debate, Krugman called on Biden to step down. Senile dementia is a clever disease. Or maybe Krugman didn’t like the face he saw in the mirror the morning after Biden’s debate performance.
What astounded Krugman and his fellow bold-faced journalist types about Biden’s rotten debate performance wasn’t the obviousness of Biden’s mental decline, but the fear that they were now publicly shown to have been lying. Krugman’s fellow in-house NYT author of Soviet state propaganda, Thomas Friedman, who fancies himself an “old friend” of Biden’s, was writing fibs about Biden as late as last month while boasting of his long off-the-record conversations with the President about the future of the Middle East. It took Friedman less than 24 hours to proclaim that Biden’s debate performance had made him “weep”. Poor man — no doubt it did. David Remnick of The New Yorker, who authored a door-stopper-sized hagiography of Barack Obama during the President’s first year in office, was equally quick to go public with his discovery that Joe Biden was maybe not exactly up to sorting marbles by size or colour, just in time to become a virgin for the next election.
It’s hard to be revealed as a fibber — especially when your job is ostensibly to tell the truth. But the sight of journalistic worthies suddenly grabbing hand towels to cover their proximity to power was not by itself enough to explain the Night of the Journalistic Long Knives.
Whataboutism comes home
On the center-left, Mark Leibovich isn’t pulling his punches in a piece on the Democrats sticking with Biden: “Since President Joe Biden’s debate debacle on Thursday, I’ve learned two things for sure: first, that Republicans are not the only party being led by a geriatric egotist who puts himself before the country. And second, that Republicans are not the only party whose putative leaders have a toxic lemming mindset and are willing to lead American democracy off a cliff.” (The Atlantic)
History will, if necessary, judge between the harm wrought by the two geriatric egotists.
Without comment
Lighter fare
One movie is worth how many words?
The shocking decline of the city—driven by any number of factors, but most certainly liberal policies high among them—drove massive white flight and deindustrialization of the city. Vast numbers of New Yorkers moved to the suburbs in Long Island, New Jersey, or in enclaves in the outer boroughs.
(An interesting exercise is to look at the movies set in the Big Apple in the early sixties compared to those in the early 70s and you can see the suddenness of the decline. From Breakfast at Tiffanys, That Touch of Mink, and Barefoot in the Park_to _Death Wish, Taxi Driver, Dog Day Afternoon, and Serpico in about a decade.).
Past its sell-by date
MoveOn is the textbook example of an organization that has outlived its purpose. Founded more than a quarter-century ago to argue that the country needed to “move on” from Bill Clinton’s intern-diddling impeachment drama, it had two things that confer a very long life in American politics: office space and a good fundraising list. And so, while the country has moved on, MoveOn hasn’t. Which is weird, but this is America.
Frank Bruni’s beloved sentences this week
- In The New Yorker, Susan B. Glasser reflected on a micro-tussle toward the end of last Thursday night’s presidential debate: “Is this how democracy dies, in a shouting match between two seniors about their golf game?” (Thanks to Mike Greenwald of Melville, N.Y., for nominating this.)
- In The Connecticut Post, Colin McEnroe pondered the president’s proper course: “I’m guardedly a ‘replace him’ guy. Some of you may recall that in 2019, I compared Biden to a Subaru with 310,000 miles on the odometer … But Thursday night was 90 minutes of the ‘check engine’ light flashing desperately in the darkness.” (Holly Franquet, Fairfield, Conn.)
- In The Atlantic, Caitlin Flanagan evaluated Americans’ attitudes toward NATO … NATO is the rotary phone of geopolitical alliances.” (Richard Reams, San Antonio)
Quickies
a matryoshka doll of mendacity
George Conway’s description of Trump, apropos of the New York records falsification case.
one of those financial doomsayers who has correctly predicted 10 of the last three recessions.
… Slate, which, as we all know, employs lab monkeys escaped from federal cocaine experiments as fact-checkers
An aphorism can never be the whole truth; it is either a half-truth or a truth-and-a-half
Karl Kraus
(Economist World in Brief)
Plaintiff Accused of Being “Litigious” Sues for Slander
Male and female
This view would understand the division of man into male and female as, of course, a biological actuality; i.e., this is the way it is. It seems to be a necessity; it is at least a convenience; and it is certainly a delight.
Thomas Howard, Chance or the Dance?, written before gender ideology was a thing.
I suffer more from the humiliations inflicted by my country than from those inflicted on her.
Simone Weil, from a letter to Georges Bernanos.
I don’t do any of the major social media, but I have two sub-domains of the domain you’re currently reading: (a) You can read most of my reflexive stuff, especially political here. (b) I also post some things on the only social medium I frequent, because people there are quirky, pleasant and real.
Tipsy Teetotaler ن 