"We owe gratitude to France, justice to England, good will to all, and subservience to none ... it was by the sober sense of our citizens that we were safely and steadily conducted from monarchy to republicanism, and it is by the same agency alone we can be kept from falling back."
-Thomas Jefferson
A bit of a late start this morning, after spending a while cleaning the espresso machine.
The machine dates back to that dreamland of late 2020, in the throes of the pandemic. Peg and I were visiting Issac and Olivia in Andover, and on our first morning there Issac prepared perhaps the finest cup of coffee I've ever had, using their fancy espresso machine. I commented on the singular experience, a rare thing at this age. A few days later a large box arrived at our door up at the Sinclaire House, containing the very same espresso machine as a gift from the kids. We've been spoiled ever since.
The trick here is dealing with the water, which is extremely hard, so hard in fact that everyone in the Southern Tier chooses to rent their hot water heaters rather than buying, knowing that within a very short time the tank will be eaten through from the bottom. We knew this was a concern from the outset, and filled the reservoir from the Brita pitcher in the fridge. This, however, wasn't enough, and soon the machine started to act sclerotic in a number of ways. A couple years back (has it been that long?) we switched to strictly distilled water and became more assiduous about regular descaling. It seems to have helped some, maybe even gradually reversing the machine's decline. This morning's ritual was part of that new discipline.
So . . . about yesterday's SCOTUS ruling on immunity. I received a couple messages not long after it came out, asking what I thought. The fact was, I hadn't had time to do much more than scan the headlines, which made it all sound reasonable enough. Wasn't the Court doing what it's always supposed to do, and figuring out where to draw a line that affords some protection from post-presidential prosecution and letting a dictator run amok?
Sort of.
I'll give my .02 with the caveat that one/I should approach this exercise with a bit of humility. I'm not a Con Law scholar by any stretch. I didn't have the benefit of the briefs, or of oral argument. I read a chunk of the opinion, but at 113 pages didn't have time to digest the whole thing (although Supreme Court opinions begin with an excellent "Syllabus" that gives the Cliff Notes version of the ruling and its reasoning).
With that said, this appears pretty bad, at a number of levels.
Substantively, the ruling draws a line of absolute immunity around a president's official acts flowing from his Constitutional (rather than statutory or traditional) powers, a presumption of immunity around other official acts, and no immunity whatsoever with regard to acts falling outside the ambit of presidential authority or function.
So far, so good I guess. But think that one through. The President's powers as commander in chief, for instance, are Constitutional, which led to Justice Sotomayor's rather chilling hypothetical about a president ordering Seal Team 6 to kill a political rival. Why would this not be subject to absolute immunity?
[in a related story, the man who would be king again has suggested a whole list of political rivals, including pretty much everyone on the congressional January 6th Commission, be subject to court martial before a military tribunal for treason. I'm not making this up: https://dnyuz.com/2024/07/01/trump-amplifies-calls-to-jail-top-elected-officials-invokes-military-tribunals/
Then there's that middle ring, if you will, where the executive gets a presumption of immunity for acts that could be deemed official. Presumptions can be overcome, of course, but chances are you aren't going to have any direct evidence of a crime. As the Court concedes, such evidence will almost always be circumstantial. But what do we use circumstantial evidence to prove in a criminal case? More often than not, intent. Justice Roberts, however, explicitly tells us that intent is the very issue we are not allowed to plumb, that it doesn't matter what a president intended.
The implications of all this are manifest in one of the express rulings contained in yesterday's decision: Trump can't be prosecuted for his interactions with the DOJ related to overturning the results of the 2020 election. They work for the president, after all, fulfilling some of his Article I and statutorily mandated functions. This exchange, which the Court deems immune, included the following based on notes from those present at the meeting:
The exchange unfolded during a phone call on Dec. 27 in which Mr. Trump pressed the acting attorney general at the time, Jeffrey A. Rosen, and his deputy, Richard P. Donoghue, on voter fraud claims that the Justice Department had found no evidence for. Mr. Donoghue warned that the department had no power to change the outcome of the election. Mr. Trump replied that he did not expect that, according to notes Mr. Donoghue took memorializing the conversation.
“Just say that the election was corrupt + leave the rest to me” and to congressional allies, Mr. Donoghue wrote in summarizing Mr. Trump’s response.
As for whatever's left of a president's accountability for criminal behavior, the Justices, perhaps recalling the moments leading up to the insurrection, warn that a president probably can't be held accountable for exhortations to the mob, part of the long history of the presidential bully pulpit.
So we're assured the president is not above the law, but it's hard to see how after this opinion that could be so.
The reasoning behind the outcome is also telling. This Court has for the last several years relied on a stew of textualism, originalism, and selective history to justify the swiss cheese treatment it's given to two hundred years of Constitutional jurisprudence. Although it pretends to do the same here, the effort isn't particularly convincing, which is unsurprising given that they're announcing an entirely new thing, an unraveling of the promise of the Declaration of Independence, the Republican wet dream: the Unitary Executive as King.
Finally, turning to the practical, the cases are remanded to the district court, with pretty much no precedent upon which to rely (another tell that this is all made up), to engage in the factually intensive task of parsing which criminal allegations are subject to immunity. This has to happen before there can be a trial, and the outcome of the exercise will almost certainly be subject to another appeal that will keep the litigation tied up for another couple years. DJT will walk into election day with only the NY convictions in place, most likely, and pardon himself after the Electoral College restores him to the throne.
So we talk in our home about selling off what we have, first below the Mason-Dixon line, and finding a marginally less authoritarian venue somewhere else. It's nice to have the means to engage in that conversation, however marginally. If this is what our country and our neighbors want, maybe it's time to find another country.
Except this isn't what people want. I read a fascinating piece in the digital paper this morning about how what's happening to the United States right now flows naturally from a multi-decade project on the right of exploiting built-in structures ensuring minority rule to corral all of us in a Christian nationalist political hell-hole run by them:
The graphics are startling. The Rs have won a majority of votes in only one presidential election in the last four decades, and yet held the White House for roughly half of that time. Almost none of the SCOTUS Justices were confirmed by the votes of senators representing a majority of the population. Only about a quarter of the electorate at this moment thinks Trump should be extended some sort of immunity for his behavior, but those folks have carried the day. The banana republic accommodations of the founding fathers in trying to keep the slave states onboard after the Revolution are all coming home to roost. And obviously it doesn't matter how you vote or I vote or my neighbors vote. They've ascended into minority rule, and now plot to make it permanent with the tools to do so. It's the end.
I was a dumbass to have fought for this country. We're as bad (or as good, if you're feeling Panglossian this morning, which obviously I'm not) as the rest.
Time for a little more tax CLE as I try to combine meeting my three year reporting obligation, which comes up in November, with getting my arms around tax law concepts that will arrive in a torrent once the LLM program starts. Then on to some billable work, maybe a brief run as I half-assedly prepare for the half marathon in October, and an evening with the lovely P.