Tuesday, April 14, 2020

Back to reality...


Lawyers are trained to look for the worst-case scenario.  It's a professional obligation.  We also like to say come outcomes are not legally possible.  I said that about the election between Al Gore and George W. Bush.  I remember telling a lawyer friend of mine, as news came the Bush campaign was appealing the Florida recount to the Supreme Court, that the Supreme Court wouldn't take it, as there was no Federal issue (it was a question of Florida law as to how the recount should be conducted).  My friend agreed with me.

Well....

But when I say this 'worst-case scenario' won't happen, I don't mean I know how the Supreme Court would rule on whatever legal fantasyland William Barr would drag into court to defend Trump's unenforceable orders.  I mean the orders themselves would be nonsense; and unenforceable.

Hearken back to when Trump wanted to do Ron DeSantis' bidding and shut down air travel from New York/New Jersey to Florida.  Andrew Cuomo muttered darkly and publicly about a war on the states with such a suggestion (that's all it ever was from Trump), and the whole thing disappeared in a puff of smoke (as most of Trump's braggadocio does).  Now consider how Trump could have enforced such a travel ban, even with a supine Congress and a compliant Supreme Court.  It is barely possible, as the federal government does control all air travel.

But how does Trump order governors to do his bidding on stay at home orders?  How does he enforce that?  With the Army?  The National Guard?  The U.S. Marshals?  Does he order the FBI to arrest Cuomo and Abbott (who's said he will follow the guidance of science, not politics), Edwards in Louisiana?  On what authority?  To what end?

Trump will never do more than stamp his feet and rage on Twitter, because it's all he's capable of doing.  Maggie Haberman says Trump thought the Presidency worked by dictate:  he says it, people do it, end of discussion.  Trump still thinks it should work that way, because he knows no other way to function.  But it doesn't; and it won't.  He can't command legions to descend on state houses and override the power of governors and usurp the authority of mayors and county officials and make every level of government comply with Trump's orders, anymore than Trump can order restaurants to re-open and movie theaters to fling wide their doors, and then command us all to attend, attend, attend!  and spend the economy back into prosperity on pain of....?  Of what?  Death?  Incarceration? Flogging?

How does this work, exactly?  What mystical mad power will Trump, in the end, discover and exert that makes this situation physically and actually worse?  Where is the power that creates this truly nightmare scenario?

Even William Barr is not going to arrest and incarcerate Trump's enemies without going through the judicial system.  And whether or not Barr can even begin the process of indictments and formal filing of charges before November, is an open question.  At the moment, Barr would have trouble finding a court that would conduct the preliminary hearing without a six-month delay.  Barr isn't even the man behind the curtain of the great and powerful Oz.

And Trump is not even a very bad wizard; he's just a very bad, and very incompetent, man.  That incompetence is dangerous; but not in ways that allow us to imagine a dystopian catastrophe we could all defy patriotically.  Which is ultimately the problem with these kinds of "worst-case scenarios."  The worst-case in reality is much worse than we're willing to imagine.  It's not the kind we can rise up against; it's the kind we'll have to just suffer through.
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