The aftermath of the Trump immunity case provides a useful foil for one of the nerdier niches of Supreme Court practice, followed by some some (unrelated) thoughts about Saturday’s news
The articles of impeachment may be futile in terms of actual political action, but they are useful in a performative way -- they move the Overton window. If Democrats only ever mention what's possible or practical, while Republicans are vocal about what they want, what is possible can only move in the Republican direction. By saying that she's not going to quietly acquiesce to corruption, AOC is making clear that corruption is a valid topic that something can be done about.
Except it's not just about whose policies are favored it's about fundamental threats to the rule of law.
Now if Trump wants to do something and SCOTUS says he can't we've fucking paved the path for him to threaten to impeach justices in response and made it easier for him to say the court is illegitimate and ignore it Jackson style.
The cost of constantly calling the court illegitimate is that someone might believe you. Or that they won't believe that this time things are really different when Trump appoints some judge Cannon style justice.
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And yah, it's unfair but that's the nature of being the good guy -- you have to worry about consequences the other guy won't.
Peter, I'm a late subscriber to Steve's Substack, and I'm slowly working backwards on his articles. Having prefaced that, what would be your thoughts on "constantly calling the court illegitimate" now that trump has called for a judge to be impeached as well as
It's all the more important to stand up for the legitimacy of the court and against Trump's attempts to ignore court rulings. There is a huge difference between not agreeing with what the court says and defying it and I think when we call the court illegitimate -- not merely wrong -- we make it a bit easier to excuse crossing that line.
Basically it comes down to this, Trump is a fundamental threat to our system of democratic government and the rule of law and the courts are the only institution that is likely to be able to do anything to restrain him. Now you might wish SCOTUS and the courts had done more in the past or were doing more now but that's not the choice we have -- we have the choice between calling the court illegitimate and weakening them in any conflict with the executive or making it clear that it's a foundational principle that you don't get to ignore the court merely because you disagree.
Think of it this way. It's a war. We might wish the court was a clear ally but if we atrack them because they aren't as strong an ally as we might wish we just weaken ourselves and the court and play into Trump's hand. The more we call the court illegitimate the more he can excuse ignoring what they say.
Remember that there are lots of Americans who have very different views of the court than we do and are given to having the opposite criticisms of their deciscions. If they don't see us modeling the principle that you must respect court decisions as legitimate even when you strongly disagree why would they think that Trump has any obligation to respect the deciscions they/he disagrees with?
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And regarding SCOTUS, regardless of justice politics they all tend to be very protective of the perogatives of the court. Nothing like arresting a judge to send the signal "it could be you next." So I have hope.
Thank you for taking the time to answer and explain why I'm in agreement with you. I'll only add, as a "rookie" at 68, retired with the time now to try to educate my limited knowledge of how the tiers of courts work and make a stab atunderstanding the complicated world of the judicial system. It is still in my personal opinion that Thomas should have excused himself from trump's immunity plea. Perhaps Alito as well, but I don't feel he was as "guilty" of obvious bias as Thomas appeared to be.
It's just unbelievably disheartening to know that we're teaching a generation of younger individuals who are witnessing the POTUS, hired into the most powerful office in the world, continuously committing crimes after crimes and receiving no punishment, only fines that the average American could not imagine accumulating. How many prisoners are learning from this point in history, how many children, how many people down on their luck and would normally never think about committing a crime, let alone the number of crimes trump has, both civil and criminal. We have a great system, compared to many countries, but man, when it fucks up, it does it royally. IMHO I can't believe we're not ransacking the capital after the immunity given to that set of criminals. With an added kick in the nuts of perhaps paying restitutions. It's just too much some days to even read the daily news. I disliked Nixon, but this one? No words. Again, thank you, I appreciate your time and information.
Thanks for your response, but I'm not sure I agree with all of it. I think one has to carefully think through the incentivizes of any rules (it's the fate of the country that matters not whether an old man gets punished after the fact as satisfying as that would be)
First, why would Thomas and Alito have to recuse themselves? Because they are politically sympathetic to Trump and have family members who are politically involved? I don't like that but I worry about requiring recusal for that. Looking at the history of the court it was historically far more politisized (literal ex-presidents got the job in political deals) and that kind of rule creates some really bad precedents. I mean the crazier some case or position is the more likely the sane justices themselves or their families have said something about it. If a justice had a family member who advocated for the previously uncontroversial POV that immigrants get due process or themselves said it was not ok to arrest judges would we want them to feel obligated to recuse? SCOTUS is different than lower courts because removing a justice is effectively a vote for the other side. Ultimately maybe it would have been nice had they choosen to do it but if they also could have just voted the other way too.
Regarding immunity let me first make clear that I think it was a bad deciscion as a matter of originalists constitutional interpretation -- but I'm not an originalist and whether it is a practically good or bad thing is less clear. I certainly don't think it would have kept him out of office -- though I do wonder if he'd be president if the prosecutions hadn't kept him in the news and given him something to feel aggrieved about (probably wouldn't matter either way).
The way Trump is breaking the law is awful, but I don't think that tells us much about the wisdom of immunity. Indeed, I don't think that's very relevant at all. I mean prospectively it offers virtually no protection with respect to federal law as the president could just pardon everyone on his way out as Biden basically did (w/o immunity he could have just pardoned himself). Yes, you can raise some arguments that self-pardons shouldn't be valid but they are far from strong -- certainly not the kind of thing likely to convince someone on the other side of a deep political divide.
And as far as state law goes (or if we eventually did decide self-pardons weren't a thing) I fear that making it easy to prosecute a former president might be worse (realistically what SCOTUS did was make it very confusing and hard to prosecute an ex-president). For starters, I fear that Trump or his allies in Texas would try to prosecute Biden or Biden officials -- or something similar would happen in the future.
And I honestly just don't care if Trump gets punished or not, I care about the future of our country and avoiding tyranny. I don't really care if we can punish him after he leaves office -- that doesn't undeport anyone. But don't we need the threat of prosecution to deter illegal acts?
Despite all the flak he got for it I think Alito was right to point out that threat of prosecution kinda has the opposite effect for the president because he can only be prosecuted by losing power. Imagine it's 4 years from now and Trump knows that he'll probably go to prison for the rest of his life if he loses power. His incentives at that point are to do whatever illegal things he can to stay in power and steal the election -- given the ages of modern presidents it's not like they would end up in prison longer if they went ahead with a literal coup. This is why the constitutions of many countries explicitly grant presidential immunity.
It's not a slam dunk. I think you can argue it either way but I don't think it's as obvious as people think.
That was what you would call, a compelling argument, I can't wholly disagree with anything you've brought up. They're excellent points for certain. Hell , I'm still waiting on his taxes and amazed a financial mag like Forbes didn't understand how to calculate square footage. So, it's difficult for me to separate trump from what has happened already. I fear for the remainder of his term like no other. Hell, Nixon pissed me off and I wasn't of age yet. But his crimes were spitting on the sidewalk compared to trump's obvious crimes. I'll bow to your analogies and obvious deep thoughts over this ....no words actually, with one opinion about the future you're contemplating could become reality. I care, perhaps too much, that a convicted felon is who I must refer to as my POTUS. Why? Because of the future as well, but not for me personally. This old goat needn't worry too much about when the USA will implode, history has that lesson ready and waiting for its students to study My expiration date will come sooner than those who shall pay for this boy's tantrums. A man would never even think to do some of trump's scams, let alone teach his children that half their neighbors want to be ruled by a King, openly. This line is my only defense. Teach The Children Well. It's not going to be easy to receive an understanding of what is happening now from the future adults running who'll be running this show. Nor to convince prisoners that their doing the right thing as they witness a grifter pissing down their necks g are5. to convince them that it's raining. This will be a long time stain on every single American citizen for quite a long time. IMHO When we've allowed,, with the court's blessing a con man, who's recorded telling Georgia to "find those votes" and our laws are being decided by a man that Anita was trashed as a POS, and who's present wife helped plan and execute a takeover (call it what you may) of the USA, we've already lowered the bar so far, I don't see why future political hacks won't be shooting for lower still. And it WILL happen, it's only a matter of time. Hypocrisy is now our new preamble. . I had one news piece that put a small smile on my disgusted mug. One of the criminals who attacked our Representatives declined his pardon from trump, he knew what he was doing and
and knows he deserves justice be served accordingly.
Again, a huge thank you for your time and help trying to understand clearer, what I've long known about humanity and our faults. You'd like to believe we've already had a few years practice at living together peacefully and not squandered those sway.
"Missouri’s (preposterous) effort to use the Court’s “original jurisdiction” to halt further proceedings in the New York state criminal fraud case against former President Trump." Both current MO Senators, Schmitt and Hawley) were MO AGs and both got publicity, and later elected to the Senate, by filing "preposterous" lawsuits that MO taxpayers had to pay for. Hawley also violated MO sunset laws and was hit with a $250,000 fine that MO taxpayers will have to pay. Our current AG, Bailey is the doofus who filed the NY state lawsuit which again, we in MO will have to pay for. Republican party rule is very costly in terms of gun safety, education, abortion, and in frivolous lawsuits that only benefit the AG.
Thanks for including Bobby Kennedy’s speech! I wish it would resonate with the masses today. However, our attention spans have been trained by social media not to tolerate much more that quick clips of information regardless of their reliability. Consequently for large segments of the population we no longer are a nation that truly has a common set of values. Instead we sadly are a nation of individuals being led by the algorithms governing what they see on their screens.
There are many good proposals for court reform & it is proper to have hearings regarding various things. But, AOC's impeachment resolutions are fine as a messaging measure + at least for Thomas are correct on the merits [we can carp on the exact terms]. Impeachment is in place partially to deal with such over the top violations of good behavior. At least in theory.
There's a tension in your comment here: is impeachment "in place partially to deal with such over the top violations of good behavior" or is it a mechanism that's "fine as a messaging measure"?
I think it's wrong when Republicans do their performative impeachments of Biden and Mayorkas. I also think AOC's performative, messaging impeachment is wrong.
It can be both. It is messaging because there is no real chance it will be successfully prosecuted. Unlike the "performative" impeachments cited, it is correct on the merits. I tried to go out of my way there & grant maybe Alito is a stretch. Thomas is not. His actions at this point are worthy of an impeachment process being carried out.
So does AOC and those applauding her move really believe Trump presents an existential threat to our republic like they claim or not?
If they do then attacking the court as illegitimate or bringing articles of impeachment is the last thing they should be doing. By all means, disagree with the deciscions -- I know I think they made some big blunders this term because they are biased humans -- but when it comes down to it in a second Trump term it surely makes things worse if he can point to the left and AOC when he wants to ignore a court ruling.
It's hard to convince the public it's unthinkable to ignore what the court says when you've been calling it illegitimate. And it's going to be hard to make the case about what's so wrong when Trump appoints justice Cannon when we've used maximalist language in critisizing the court as it is.
In the RFK speech to the Cleveland City Club, you include this sentence: "The question is now what programs we should seek to enact." In context, I think that "now" is a "not."
While a bit tangential, and it is unlikely that DOJ/Jack Smith would seek reconsideration of the immunity ruling (and probably even less likely in light of today's other news), a couple of questions relating to the scope of the immunity ruling. First of all, is it possible in the event of impeachment and conviction by the Congress for high crimes and misdemeanors involving official acts of the President, would that be sufficient to overcome the determination of absolute immunity for subsequent prosecution of those crimes or would absolute immunity for official acts continue to exist. Secondly, while it has been posited that, as an extreme example, while immunity would shield the President for any crimes arising from official acts, if an underling carries out an order for which the President is shielded, Presidential immunity should not flow down to that underling as well. I can certainly imagine defense counsel aggressively trying to argue that a criminal act committed by an underling in direct response to a Presidential order involving the exercise of an official act should shield the underling as well. Your thoughts on both questions.
The articles of impeachment may be futile in terms of actual political action, but they are useful in a performative way -- they move the Overton window. If Democrats only ever mention what's possible or practical, while Republicans are vocal about what they want, what is possible can only move in the Republican direction. By saying that she's not going to quietly acquiesce to corruption, AOC is making clear that corruption is a valid topic that something can be done about.
Except it's not just about whose policies are favored it's about fundamental threats to the rule of law.
Now if Trump wants to do something and SCOTUS says he can't we've fucking paved the path for him to threaten to impeach justices in response and made it easier for him to say the court is illegitimate and ignore it Jackson style.
The cost of constantly calling the court illegitimate is that someone might believe you. Or that they won't believe that this time things are really different when Trump appoints some judge Cannon style justice.
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And yah, it's unfair but that's the nature of being the good guy -- you have to worry about consequences the other guy won't.
Peter, I'm a late subscriber to Steve's Substack, and I'm slowly working backwards on his articles. Having prefaced that, what would be your thoughts on "constantly calling the court illegitimate" now that trump has called for a judge to be impeached as well as
ignored the court?
It's all the more important to stand up for the legitimacy of the court and against Trump's attempts to ignore court rulings. There is a huge difference between not agreeing with what the court says and defying it and I think when we call the court illegitimate -- not merely wrong -- we make it a bit easier to excuse crossing that line.
Basically it comes down to this, Trump is a fundamental threat to our system of democratic government and the rule of law and the courts are the only institution that is likely to be able to do anything to restrain him. Now you might wish SCOTUS and the courts had done more in the past or were doing more now but that's not the choice we have -- we have the choice between calling the court illegitimate and weakening them in any conflict with the executive or making it clear that it's a foundational principle that you don't get to ignore the court merely because you disagree.
Think of it this way. It's a war. We might wish the court was a clear ally but if we atrack them because they aren't as strong an ally as we might wish we just weaken ourselves and the court and play into Trump's hand. The more we call the court illegitimate the more he can excuse ignoring what they say.
Remember that there are lots of Americans who have very different views of the court than we do and are given to having the opposite criticisms of their deciscions. If they don't see us modeling the principle that you must respect court decisions as legitimate even when you strongly disagree why would they think that Trump has any obligation to respect the deciscions they/he disagrees with?
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And regarding SCOTUS, regardless of justice politics they all tend to be very protective of the perogatives of the court. Nothing like arresting a judge to send the signal "it could be you next." So I have hope.
Thank you for taking the time to answer and explain why I'm in agreement with you. I'll only add, as a "rookie" at 68, retired with the time now to try to educate my limited knowledge of how the tiers of courts work and make a stab atunderstanding the complicated world of the judicial system. It is still in my personal opinion that Thomas should have excused himself from trump's immunity plea. Perhaps Alito as well, but I don't feel he was as "guilty" of obvious bias as Thomas appeared to be.
It's just unbelievably disheartening to know that we're teaching a generation of younger individuals who are witnessing the POTUS, hired into the most powerful office in the world, continuously committing crimes after crimes and receiving no punishment, only fines that the average American could not imagine accumulating. How many prisoners are learning from this point in history, how many children, how many people down on their luck and would normally never think about committing a crime, let alone the number of crimes trump has, both civil and criminal. We have a great system, compared to many countries, but man, when it fucks up, it does it royally. IMHO I can't believe we're not ransacking the capital after the immunity given to that set of criminals. With an added kick in the nuts of perhaps paying restitutions. It's just too much some days to even read the daily news. I disliked Nixon, but this one? No words. Again, thank you, I appreciate your time and information.
Thanks for your response, but I'm not sure I agree with all of it. I think one has to carefully think through the incentivizes of any rules (it's the fate of the country that matters not whether an old man gets punished after the fact as satisfying as that would be)
First, why would Thomas and Alito have to recuse themselves? Because they are politically sympathetic to Trump and have family members who are politically involved? I don't like that but I worry about requiring recusal for that. Looking at the history of the court it was historically far more politisized (literal ex-presidents got the job in political deals) and that kind of rule creates some really bad precedents. I mean the crazier some case or position is the more likely the sane justices themselves or their families have said something about it. If a justice had a family member who advocated for the previously uncontroversial POV that immigrants get due process or themselves said it was not ok to arrest judges would we want them to feel obligated to recuse? SCOTUS is different than lower courts because removing a justice is effectively a vote for the other side. Ultimately maybe it would have been nice had they choosen to do it but if they also could have just voted the other way too.
Regarding immunity let me first make clear that I think it was a bad deciscion as a matter of originalists constitutional interpretation -- but I'm not an originalist and whether it is a practically good or bad thing is less clear. I certainly don't think it would have kept him out of office -- though I do wonder if he'd be president if the prosecutions hadn't kept him in the news and given him something to feel aggrieved about (probably wouldn't matter either way).
The way Trump is breaking the law is awful, but I don't think that tells us much about the wisdom of immunity. Indeed, I don't think that's very relevant at all. I mean prospectively it offers virtually no protection with respect to federal law as the president could just pardon everyone on his way out as Biden basically did (w/o immunity he could have just pardoned himself). Yes, you can raise some arguments that self-pardons shouldn't be valid but they are far from strong -- certainly not the kind of thing likely to convince someone on the other side of a deep political divide.
And as far as state law goes (or if we eventually did decide self-pardons weren't a thing) I fear that making it easy to prosecute a former president might be worse (realistically what SCOTUS did was make it very confusing and hard to prosecute an ex-president). For starters, I fear that Trump or his allies in Texas would try to prosecute Biden or Biden officials -- or something similar would happen in the future.
And I honestly just don't care if Trump gets punished or not, I care about the future of our country and avoiding tyranny. I don't really care if we can punish him after he leaves office -- that doesn't undeport anyone. But don't we need the threat of prosecution to deter illegal acts?
Despite all the flak he got for it I think Alito was right to point out that threat of prosecution kinda has the opposite effect for the president because he can only be prosecuted by losing power. Imagine it's 4 years from now and Trump knows that he'll probably go to prison for the rest of his life if he loses power. His incentives at that point are to do whatever illegal things he can to stay in power and steal the election -- given the ages of modern presidents it's not like they would end up in prison longer if they went ahead with a literal coup. This is why the constitutions of many countries explicitly grant presidential immunity.
It's not a slam dunk. I think you can argue it either way but I don't think it's as obvious as people think.
That was what you would call, a compelling argument, I can't wholly disagree with anything you've brought up. They're excellent points for certain. Hell , I'm still waiting on his taxes and amazed a financial mag like Forbes didn't understand how to calculate square footage. So, it's difficult for me to separate trump from what has happened already. I fear for the remainder of his term like no other. Hell, Nixon pissed me off and I wasn't of age yet. But his crimes were spitting on the sidewalk compared to trump's obvious crimes. I'll bow to your analogies and obvious deep thoughts over this ....no words actually, with one opinion about the future you're contemplating could become reality. I care, perhaps too much, that a convicted felon is who I must refer to as my POTUS. Why? Because of the future as well, but not for me personally. This old goat needn't worry too much about when the USA will implode, history has that lesson ready and waiting for its students to study My expiration date will come sooner than those who shall pay for this boy's tantrums. A man would never even think to do some of trump's scams, let alone teach his children that half their neighbors want to be ruled by a King, openly. This line is my only defense. Teach The Children Well. It's not going to be easy to receive an understanding of what is happening now from the future adults running who'll be running this show. Nor to convince prisoners that their doing the right thing as they witness a grifter pissing down their necks g are5. to convince them that it's raining. This will be a long time stain on every single American citizen for quite a long time. IMHO When we've allowed,, with the court's blessing a con man, who's recorded telling Georgia to "find those votes" and our laws are being decided by a man that Anita was trashed as a POS, and who's present wife helped plan and execute a takeover (call it what you may) of the USA, we've already lowered the bar so far, I don't see why future political hacks won't be shooting for lower still. And it WILL happen, it's only a matter of time. Hypocrisy is now our new preamble. . I had one news piece that put a small smile on my disgusted mug. One of the criminals who attacked our Representatives declined his pardon from trump, he knew what he was doing and
and knows he deserves justice be served accordingly.
Again, a huge thank you for your time and help trying to understand clearer, what I've long known about humanity and our faults. You'd like to believe we've already had a few years practice at living together peacefully and not squandered those sway.
"Missouri’s (preposterous) effort to use the Court’s “original jurisdiction” to halt further proceedings in the New York state criminal fraud case against former President Trump." Both current MO Senators, Schmitt and Hawley) were MO AGs and both got publicity, and later elected to the Senate, by filing "preposterous" lawsuits that MO taxpayers had to pay for. Hawley also violated MO sunset laws and was hit with a $250,000 fine that MO taxpayers will have to pay. Our current AG, Bailey is the doofus who filed the NY state lawsuit which again, we in MO will have to pay for. Republican party rule is very costly in terms of gun safety, education, abortion, and in frivolous lawsuits that only benefit the AG.
Thanks for including Bobby Kennedy’s speech! I wish it would resonate with the masses today. However, our attention spans have been trained by social media not to tolerate much more that quick clips of information regardless of their reliability. Consequently for large segments of the population we no longer are a nation that truly has a common set of values. Instead we sadly are a nation of individuals being led by the algorithms governing what they see on their screens.
Hear,hear. We're also a nation of too many individuals who failed at history's lessons.
There are many good proposals for court reform & it is proper to have hearings regarding various things. But, AOC's impeachment resolutions are fine as a messaging measure + at least for Thomas are correct on the merits [we can carp on the exact terms]. Impeachment is in place partially to deal with such over the top violations of good behavior. At least in theory.
There's a tension in your comment here: is impeachment "in place partially to deal with such over the top violations of good behavior" or is it a mechanism that's "fine as a messaging measure"?
I think it's wrong when Republicans do their performative impeachments of Biden and Mayorkas. I also think AOC's performative, messaging impeachment is wrong.
It can be both. It is messaging because there is no real chance it will be successfully prosecuted. Unlike the "performative" impeachments cited, it is correct on the merits. I tried to go out of my way there & grant maybe Alito is a stretch. Thomas is not. His actions at this point are worthy of an impeachment process being carried out.
So does AOC and those applauding her move really believe Trump presents an existential threat to our republic like they claim or not?
If they do then attacking the court as illegitimate or bringing articles of impeachment is the last thing they should be doing. By all means, disagree with the deciscions -- I know I think they made some big blunders this term because they are biased humans -- but when it comes down to it in a second Trump term it surely makes things worse if he can point to the left and AOC when he wants to ignore a court ruling.
It's hard to convince the public it's unthinkable to ignore what the court says when you've been calling it illegitimate. And it's going to be hard to make the case about what's so wrong when Trump appoints justice Cannon when we've used maximalist language in critisizing the court as it is.
In the RFK speech to the Cleveland City Club, you include this sentence: "The question is now what programs we should seek to enact." In context, I think that "now" is a "not."
Thank you for RFK's sadly ironic comments. I'll bet the most responses you will get to day are
"WTF will SCOTUS do with Cannon. And when?"
While a bit tangential, and it is unlikely that DOJ/Jack Smith would seek reconsideration of the immunity ruling (and probably even less likely in light of today's other news), a couple of questions relating to the scope of the immunity ruling. First of all, is it possible in the event of impeachment and conviction by the Congress for high crimes and misdemeanors involving official acts of the President, would that be sufficient to overcome the determination of absolute immunity for subsequent prosecution of those crimes or would absolute immunity for official acts continue to exist. Secondly, while it has been posited that, as an extreme example, while immunity would shield the President for any crimes arising from official acts, if an underling carries out an order for which the President is shielded, Presidential immunity should not flow down to that underling as well. I can certainly imagine defense counsel aggressively trying to argue that a criminal act committed by an underling in direct response to a Presidential order involving the exercise of an official act should shield the underling as well. Your thoughts on both questions.
The Federal Government says it was an assassination attempt, why are your elect ant to do the same?
*reluctant