Thursday, July 28, 2022

"The Law In Its Majesty...."

Here's the heart of the quoted argument: "Half the country" is a bit generous, but let's overlook that. The argument is not really about wealth (although name a poor prominent politician.) It's about politics. And the argument is basically: "Only banana republics bring criminal charges against former chief executives (Presidents, Prime Ministers, etc.).

To which I would respond:  France.  And Italy.  Just off the top of my head.  Britain and Germany have parliamentary systems where the Prime Minister is chosen by the party, and is answerable to the party.  Which is why even Boris Johnson couldn't pull a Trump (try though he did) and survive a major scandal or fight to hold his office.  France and Italy have better systems for picking leadership than America, too.  But they haven't shied from prosecuting their former executives, and no one has declared them backwards countries acting for illegitimate political purposes (Oh, I'm sure some of their citizenry did, but that storm passed without serious consequences.). European countries have prosecuted former executives, and yet no one considers their governments to be "banana republics" (a racist term anyway, as those examples indicate.  Lee doesn't use it, so let's not ascribe it to him.).  Yes, Virginia, countries can indict former Presidents for crimes beyond the "high crimes and misdemeanors" of impeachment.

Which, taking Lee at face value (i.e., considering his argument as one would if faced with a motion for summary judgment seeking to dismiss it), would make his argument equally apply to impeachment.  It might as well, as we have never removed a sitting President via impeachment (or the 25th Amendment) and likely never will.  By that example and Lee's (rather paltry and seriously strained argument taken in toto), no President can ever be challenged for how he operates his office; even at the state level. (Lee doesn't mention the Georgia investigation, but how it is different from any DOJ investigation of Trump is a matter for him to propound.)  Besides, there's the counterpoint to his statement about what "the other half" will think of a prosecution of Trump; the inverse of that argument, as it were.

"[T]his sets the precedent that it’s ok for presidents to violate federal (and state) laws, to even arouse a mob to charge the Capitol and threaten the lives of Congress members [Josh Hawley clearly felt threatened.  A gallows is seldom erected as a sign of peace and seeking dialogue.  The crowd only dispersed because Trump told them to.] because there will be no consequences."  And much as I hate to admit it, isn't one purpose of a criminal justice system to impose consequences for behavior deemed dangerous or destructive to society, of which a portion is the body politic?

Does "politics" constitute a "Get Out Of Jail Free" card, available only to sitting and former Presidents?  Even Robert Mueller, who stuck so strictly to DOJ guidelines about criminal investigations/prosecutions of sitting Presidents, didn't seem to think so.  Some crimes deserve the punishment of law, even if 100% of the citizenry don't agree (is crime now to be subject to plebiscite?).  Is it truly "political" to say a President plotting to undermine the legal electoral process at both the state and federal level, and organizing and directing a mob to storm the Capitol as part of that plotting, should face criminal investigation and charges if any are found to be warranted?  Only in the sense that prosecuting OJ Simpson was "political."  Only in the sense that every major prosecution of a public figure or political office holder is "political."  Elected prosecuting attorneys always consider the political optics of high-profile prosecutions.  That doesn't mean the prosecutions are only justified if over 50% of their voters think it is.  The very idea that we base prosecutions of public figures on polls is itself an absurdity and undermines the rule of law, which Mr. Lee seems to think is only a matter of politics, anyway.  But given the fact that any poll at any one time is unlikely to accurately reflect anything but the responses of the people actually questioned in that poll, makes the idea of criminal justice resting on majority approval an obscenity anyway.

Not to mention Mr. Nolan's point, which also deserves consideration in this discussion.  And if you're really worried about politics and appearances, there is the problem of the company you keep:
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