Tuesday, April 30, 2024

What The Fuck Is She Talking About?

I know; perennial question where Habba is concerned.  But this is just sucking Trump off in public, and via telecommunications:

"How are you supposed to operate?" the attorney said. "He can't go on the campaign trail, and he's operating at the highest level you've ever seen."

The highest what?  He enters the courtroom daily shouting the same stupid complaints, and then falls asleep in the courtroom, and rouses himself for lunch and to leave after 6 hours to utter his usual evening complaints.  He had Wednesay off last week and a long weekend (no court Monday, left at 2 on Friday) during which he...what, played golf?

Habba promised Trump would "find ways to fight back."

So he really, really wants to spend time in jail?  The judge could tack it onto his sentence after the guilty verdict, you know (or do you?).  And there's the matter of Trump having already committed a crime while on bail in 4 jurisdictions. How many fights does this dipshit want?

"But quite honestly, what I'm seeing is so inappropriate, so unfair, and so one-sided," she remarked. "I don't know how he can stand it. To be honest, it's hard for me to stand it as his attorney, and we respect laws, but we also respect the constitution, and there has to be a change right now." 

The Constitution is the law; or did you miss that class in law school?  And are you arguing that Trump is not getting the full benefit of the Rich White Man Privilege?  Because he so clearly is.  Who else arrives and leaves in a full SS motorcade? 

The "Republican candidate" is not a constitutionally recognized, nor legally protected, office. (And technically, by the rules of the party, he's not the candidate yet). It has nothing to do with the court case. The more relevant issue is the Secret Service protection: And yeah, Trump makes as much sense as Habba: No wonder they like each other.


So I was listening to MSNBC start reporting on the trial this morning sometime after 9 CDT (Acyn's time stamp is 8:26, which could be consistent with his PDT location), which would have been 10 EDT. I'm pretty sure the court starts its day around 10:00/10:30, takes a lunch break (an hour, I'd guess), and he's outside complaining at 4:30 EDT.  So about 5 hours in court, and he slept through a lot of that. And it's a small thing in the grand scheme, but Trump is part of the reason the court is taking so much time in some matters: This is what I mentioned this morning before I went outside to do real work (well, gardening, planting, potting, etc.) Trump is like a anti-Paklid (from ST:NG): He thinks he is smart, because he does not make things go. He thinks fighting every inch of ground is clever, when it's just a waste of time, money, and jury attention. Prosecutors have ways of making sure the jury knows why they have to go through this tedious confirmation of evidence. And the more Trump does it, the more the jury will catch on to why it is being done. 

Trump wants his lawyers to fight more.  This is what he gets for his truculence.

Trump is smart. He shoots his own foot off.

He can't tell time, either.

Other People’s Money

The stipulation saves about an hour of court time, and means you’re paying your attorneys to do something more substantive. Not stipulating, IOW, wastes time and money and brings no return to you. 

But Trump is spending other people’s money, so what does he care? Until other people decide they’re tired of him spending their money that way.

When does he start campaigning again? I can’t imagine there are too many big donors interested in his legal fund, v. his campaign fund.

No! No! Lock Him Up Now! The People Demand Blood!

And all those people on Twitter demanding Merchan lock Trump up by yesterday. And if the delay doesn’t help Trump and he goes to trial in 2025? Well, who pays for it? He’ll be a two-time loser and not running for anything. Small donors are already drying up, and large donors won’t bother at all.

Trump’s most likely to get what he wishes for, and that’s not a return to the White House. If a felony conviction is enough to cost him votes, New York is most likely to oblige.
Always easier when the kooks aren’t hiding it. 
an interview with Time Magazine, the former president was asked about polls showing that his supporters believe that "antiwhite racism" is now a greater problem than prejudice leveled against other minorities. There is a definite antiwhite feeling in the country,” Trump replied in response. “And that can’t be allowed either.” 
Trump has a long history of deploying racist dog whistles, starting with his failed quest to prove that former President Barack Obama was born in Kenya and was thus not eligible to be president.
Except I’d always understood a “dog whistle” meant someone was being subtle; and this is about as subtle as a white hood.


Reports are he doesn’t have the money, and he needs $76 million to carry on with his cases.  Trump is famous for stiffing everyone, including his lawyers, but too many of those lawyers are working multiple cases, and if he stiffs just one, the rest might decide it’s not worth it.
While Trump has complained about Blanche being unwilling to lob attacks at jurors and Judge Merchan, he has also questioned friends about why Blanche is charging him so much money, which the Times notes is relevant because Trump "sometimes refuses to pay" the lawyers who represent him in court.
The cascade effect of that could be disastrous. But then again,
"Mr. Trump views himself as own best legal strategist."
By the way, the idea that Trump could run for president from jail? Laughable.
He's in a horrible mood and it's hard for him to sort of do donor events afterwards or talk strategy after the sessions in court because he's just so livid," said Washington Post investigative reporter Carol Leonnig during an appearance on MSNBC's "The Eleventh Hour" with Stephanie Ruhle. 
Leonnig pointed to a story from her WaPo colleagues describing effects of being stuck in a stuffy court as being "disruptive to his campaign" and that his mood is intensely worsening, according top sources.  
“The former president is accustomed to near-daily rounds of golf, 'constant stimulation' and cheers when he enters and exits a room at Mar-a-Lago," according to the sources. "Instead, he is now reporting four days a week for mundane court arguments and long stretches without permission to check his phone."
Unless you think conditions in jail will make him happier than a few hours a day in a courtroom, 4 days a week. This is the point where I’m convinced Giuliani has incontrovertibly lost his mind and joined Trump in La-La Land. They can argue with each other there, over which one of them really is “the storm.” ⛈️  Trump and Giuliani are gonna need raincoats.

Monday, April 29, 2024

Self-Awareness Is A Rare Gift

I’m pretty sure Newt doesn’t realize he’s describing Newt. To a “T.”
Not exactly “Uncle Walter” Cronkite questioning the value of the Vietnam War on the air (ask yer Grandpa!), but better than nothing, I guess. But even Cronkite didn’t make a dent in the narrative.
"[Trump] said he wants to be a dictator on day one," Biden told the nation. "He tells supporters he is their revenge and retribution. When in God's name have you ever heard another president say something like that? And he promised a 'bloodbath' when he loses again. We have to take this seriously."
Who matters more when they say it?  My money’s on AG. Sulzberger, I mean. I’m bemused by the idea Trump would choose a female VP candidate who didn’t always generously display  dΓ©colletΓ© and the brains of a Barbie doll.  He’d be more likely to pick Habba, if he wasn’t so disgusted with her lack of lawyering skills.

And the implication that Trump is stupid, but even he’s not that stupid.
Could Trump shoot a dog? I mean, “and get away with it?” But I also mean “And stomach it?” Not NYT Pitchbot. Or satire. Reality continues to beggar humor.  The Constitution is the only thing that allows Trump to keep talking. All he does is protest one thing or another.

“Is Our Children Learning?”

UT-Austin is in downtown Austin on 431 acres.

Less “what did they think was going to happen?,” and more: “What the fuck did they think they were doing?”

Or is this just really piss-poor reporting?

The campus has no gates, no fences, no barricades or barriers. You can’t keep anyone on the campus, much less keep them off.

Somebody here is missing a clue. πŸ•΅️‍♂️ 

“I Am The Storm Clown” 🀑

I remember saying to him, ‘Donny, let’s just be human,'” Platon recalls of a portrait session with Trump. 
"We’ve all followed your career, no one can doubt it’s an extraordinary career path you’ve had," Platon said he told Trump. "But there’s always something about you, there’s always an air of tension and controversy about things you say and do in public, and I’m sure it’s intentional on your part. But it feels to me as if you’re in the middle of an emotional storm. I can’t live with that anxiety all the time. As a fellow human being, I’d like to know how you weather the storm.” 
It was at that point that Trump looked at Platon and said, "I am the storm." 
“I had those words ringing out in my brain,” Platon told Amanpour. “Through the election campaign, through his presidency, through his post-presidency, and now we’re in another cycle again. I keep thinking to myself, ‘There’s only one person who can navigate perfectly through the storm,’ and that’s the creator of the storm.”
Trump is probably referring to that once favorite t-shirt art about the warrior and the storm, where Fate (or some such imaginary entity) whispers to the warrior: “You cannot survive the storm,” to which the warrior answers: “I am the storm.”

Trump was never a warrior, and he was never the storm. He’s just a puffed-up toad with a checkbook courtesy of Daddy, living in a bubble of people he pays to tell him what a warrior he is.

He’s not scary, he’s delusional. Anybody else remember how Nancy Pelosi handed him his ass, live and in person?

Trump centers in chaos because he couldn’t administer a two-car funeral procession. It’s neither cunning nor clever; it’s an inability to work with people, because nobody else is him, and he is all that matters. Walt Nauta talked about Trump leaving papers scattered on the floor of the Oval Office each day, leaving them for others to collect. That’s neither strategy nor control; it’s indifference. It may be his way of imagining he’s in control. But now he’s in criminal court, finding out what real control is, and he doesn’t have it. He whines like a petulant child that he can’t go to Barron’s graduation, or Melania’s birthday (she was nowhere to be seen in pictures from MAL when Trump got there anyway), and how he couldn’t attend the Supreme Court hearing on his appeal (he dropped that one pretty quick). And no one cares. He can’t accept it. He can’t change it. He really is what Biden called him: a six year old child.

A six year old child would say “I am the storm,” and think himself tough and strong and maybe even brave. But a man in his late’60’s never would.

Trump is not the creator of anything except his own demise. Had he never run for president, nobody would notice him now. As it is, four jurisdictions will have him face criminal charges.  “Storm,” my ass.

Tenure Is A Powerful Thing

But it doesn’t necessarily engender wisdom. Which we are desperately in need of.

Trump, Campaigning

The video originally posted to Truth Social by user "UltraMagaRocky0017," displays messages over the video at various points, including proclamations listing those nations and individuals who allegedly "submitted" to Trump. 
This video has been around for quite some time and was made during Trump's term in office. Trump's Truth Social is a hotbed of QAnon activity and Trump doesn't mind boosting the fringe content onto his timeline. 
Some QAnon adherents believe that Trump got countries to help him fight against what they claim is a devil worshipping network of child blood consuming elites. Some of them still believe Trump holds the presidency and these nations are still loyal to him.
Or just salving his damaged narcissistic ego. Two conditions that often appear alike.

Who Doesn’t Love Puppies?

No puppies in this basket were shot for being annoying.

No Court Today

The Incredible Shrinking Trump

 I had never considered this:

Who cares what he's angling for!?" she exclaimed. "And by the way, you seriously think — yes he's angling for the martyrdom — you seriously think that guy you know 'Mr Hair Product' and bronzer wants to be in a jail cell overnight without any of his products and without his cell phone? Imagine what he's going to look like in the morning!" 
Dr. Trump said that just being in court for three hours a day is leading to her uncle "dissolving before our eyes."
And I don’t think Trump has, either. A night in the cells means he comes to court the next morning, from the cells.


(And Justice Merchan’s concern is not Trump’s “martyrdom,” but whether the Appellate Division will thing jail is warranted on these facts.)

GOP Presidential Politics

The only word missing is “quim,” as the noun for the adverb “mewling.” Then it would be practically perfect in every way.

I heard this morning the Trump campaign considers those daily whinge sessions to be campaign fodder. For Trump, not against him. On the same program I was told Trump now has a very professional campaign, for the first time. I think the courthouse steps bitch sessions were cited as an example.

I can grasp many a paradox and keep contradictory thoughts in my head; but I cannot reconcile that analysis with reality. Especially when the Washington Post is pulling out terms like “mewling.”

What He Said

The non-law professor version (because I don’t need any more paid subscriptions) is that courts should try the case before them, not the cases that might come before them. This is connected to standing and jurisdiction and venue. Which is to say, it’s as fundamental to the concept of courts as it gets. And it keeps courts from being super-legislatures. Which is also fundamental to the concept of courts, as in:,what establishes and preserves their legitimacy, and even their claims to be the third branch of government.

But as I said, the blueprint for the argument, at least, seems to have been Fitzgerald; and the majority in Fitzgerald happily entertained hypotheticals well beyond the scope of one civil lawsuit, in order to establish absolute immunity from civil suits for the POTUS.

But Fitzgerald also distinguished civil from criminal claims; the majority implicitly so, the dissent explicitly. And there, as they say, our problems begin.


The NYT didn’t like this one? Or maybe this one? Too blue? Too close to the truth? Staten Islanders don’t have a sense of humor?

Well, we’re not talking about Sulzberger, huh?

“The first thing we do, let’s kill all the lawyers…”

Who's going to bring all these charges? Ken Paxton? Or Trump, if he wins and gains complete control of the DOJ?

Because in 200+ years, this has never been a problem. What’s changed?

And there’s still the problem of who prosecutes all these supposed crimes.

White Racist Translator Service


This is a free service.

Sunday, April 28, 2024

“It’s A Wonder Tall Trees Ain’t Layin’ Down”

I honestly don’t know a time when this was not true. Conspiracy theories are as American as apple pie. In that, Nixon was Trump’s predecessor. And yet Nixon finally became an elder statesman, and was always defended for his foreign policy successes.

Trump is bad; but he’s not sui generis. I knew perfectly reasonable people who died thinking Nixon was railroaded. The line between that and any other conspiracy theory (what was Nixon’s paranoia, if not a personal conspiracy theory?) is a thin one, indeed.

There is, indeed, nothing new under the sun.

The Latin Term Was Diktator

The diktator was a Roman office reserved for times of crisis. The diktator was given complete control in order to save the Empire. The only law that bound the office was to step down from it when the crisis had passed. Julius Caesar refused to; and the Caesar’s followed him, turning his name into the title of the singular ruler.

And Rome gave us the word for a despot; a “strong man,” a singular figure who would save the nation. A person above the law, who was the law.

And right now, the problem seems to be the 5 people who, in our Constitutional system and because of our acceptance of their claims to authority, are going to decide what the law is, and whether anyone can be “above it.”

As I said, Fitzgerald is their blueprint:
The President occupies a unique position in the constitutional scheme. Article II, § 1, of the Constitution provides that "[t]he executive Power shall be vested in a President of the United States. . . ." This grant of authority establishes the President as the chief constitutional officer of the Executive Branch, entrusted with supervisory and policy responsibilities of utmost discretion and sensitivity. These include the enforcement of federal law -- it is the President who is charged constitutionally to "take Care that the Laws be faithfully executed"; the conduct of foreign affairs -- a realm in which the Court has recognized that "[i]t would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret" and management of the Executive Branch -- a task for which "imperative reasons requir[e] an unrestricted power [in the President] to remove the most important of his subordinates in their most important duties."
Some of the Justices seem to be looking for a way to extend that argument to cover criminal immunity.
Courts traditionally have recognized the President's constitutional responsibilities and status as factors counseling judicial deference and restraint.
In the wrong hands, you can see what that settled legal doctrine (it’s not controversial, nor invented by Fitzgerald) can be turned into.
It strains the meaning of the words used to say this places a President "above the law." United States v. Nixon, 418 U. S. 683 (1974). The dissents are wide of the mark to the extent that they imply that the Court today recognizes sweeping immunity for a President for all acts. The Court does no such thing. The immunity is limited to civil damages claims. Moreover, a President, like Members of Congress, judges, prosecutors, or congressional aides -- all having absolute immunity -- are not immune for acts outside official duties. Ante at 457 U. S. 753-755. Even the broad immunity of the Speech and Debate Clause has its limits.
Pretty much the blueprint, wouldn’t you say? And, as opposed to the Roman Senate of old, 5 unelected persons who have long ago declared the Constitution gives them their positions for life, and the final arbiter of what that Constitution says, could decide to appoint a diktator, if only in retrospect, and only to protect Trump. If Biden wins, Trump will likely be the last person to need it. If Trump wins, Biden will have immunity. But here is the final irony of resting criminal immunity on Fitzgerald:
a rule of absolute immunity for the President will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive. There remains the constitutional remedy of impeachment. In addition, there are formal and informal checks on Presidential action that do not apply with equal force to other executive officials. The President is subjected to constant scrutiny by the press. Vigilant oversight by Congress also may serve to deter Presidential abuses of office, as well as to make credible the threat of impeachment. Other incentives to avoid misconduct may include a desire to earn reelection, the need to maintain prestige as an element of Presidential influence, and a President's traditional concern for his historical stature.
The irony is that the case before the Court alleges Trump abused the office precisely because he didn’t win re-election, and he claims immunity because he’s seeking election again. And he’s singularly unconcerned with the prestige of the office (unless he holds it, and then he thinks he brings the prestige to the office), and his historic legacy (who is building his library? And where?).

But what a constitutional crisis seems to be set before the nation.

(Sorry to run through Fitzgerald again, but sometimes it takes me three times to figure out what I want to say.)

I’m Willing To Consider, Now…

...that Trump won’t testify.

Unless he’s so thoroughly convinced that everything he says is true, and all he needs to do is say it.

Yeah…that could happen….

"He did that consistently. I can tell you stories where he would come on the campaign plane and we would ask him why he misquoted something, why did he exaggerate those percentages. He would say sounds better and people will believe it. Even if other people say that I'm lying, people will believe it. He looks terrible and he's lying. It's literally the same playbook he's used as you and I both know from living in New York for 50 years."
He’ll see it as playing the odds. He was told not to testify in previous cases; and lost. And he figures people will believe his lies; especially people on the jury.

It’s worked for him before…

Pictures v 1000 Words

Know your market.

“Follow The Money”

 Now I understand why Trump really opposed funding for Ukraine, and why he pleaded publicly for the House to help him:

Strapped for cash, and facing an estimated seventy-six million dollars in legal fees, he spent much of the winter courting billionaires at Mar-a-Lago. Having inveighed against White House plans to aid the Ukrainian war effort and to either force a sale of TikTok or ban it, Trump watched as Mike Johnson, the Republican Speaker of the House, helped propel both proposals into law. (“GOP lawmakers take Trump’s policy orders with a grain of salt,” a headline in The Hill read.)
He wanted that money for himself.

Still Want To Know

a)  Were any of her children “biters”?

b). Can we verify how many children she’s had?

Mitch McConnell Is An Old Man πŸ‘΄πŸ»

And really not much more. Uncle Shelby’s ABZ’s. Forget that Giving Tree crap. I still have my copy I bought in college. It was my introduction to Silverstein. I read it to my daughter. Still his finest work, as far as I’m concerned.

Find your own copy! I can’t do everything for you!
Even Uncle Shelby was never that dark. State governors must have absolute immunity! I just have to go here: I have shared my house (cat people know what I mean) with 10 cats over nearly 50 years (not counting cats in my childhood). Four were semi-feral, three of those four lived in the backyard where they were born. The males of the litter disappeared at about 1 year. The mother died of old age heaven knows where. Her daughter lived with us well into old age.

Six of those seven were euthanized (the seventh died in an accident for which I was responsible. I don’t even like to think about it.). My wife and I were with each of them at the end, every time.

Kristi Noem is not fit to own even a stuffed animal.🧸  Nor is she fit to live among civilized people.

A Friendly Reminder

Jonathan Turley has never tried a case in his life. He’s been a law professor for his entire career. He teaches criminal procedure, but he’s never practiced it in a court of law (there IS a difference).

When I was a legal assistant (before law school) , I had a law clerk (student at UT Law) get sent to me by a lawyer he was clerking for. A partner told the lawyer to send the clerk to docket call. The lawyer sent the clerk to me to find out: a) where the courthouse was; b) what room to go to; c) when to be there; and d) what to do when he got there.

After law school I had more sympathy for him. They don’t teach you how to practice law in law school (not at UT, anyway), and they don’t teach you how to be a pastor in seminary. Been there, done that.

Turley is that law clerk. If you plunked him down in s courtroom, he wouldn’t know how to conduct even a direct examination. I doubt he’d be better than Habba. It’d be a close thing if he even knew how to get an exhibit entered (practice varies based on local rules. You can look like a real idiot in front of a jury if you can’t do that correctly.)

Besides, the man clearly doesn’t know his ass from a hole in the ground. (This is why Steve Vladeck doesn’t comment on trials. Not his bailiwick. Man got to know his limitations.)


All while in New York, you can't go into Duane Reade," Trump added. "You can't go into CVS and buy skin lotion because it has to be locked behind Plexiglas because theft is so high." 
The former president's son implied Biden was behind his skincare troubles. 
"The country does not believe it," Trump observed. "But this guy's not going to make it. He can't."
The witnesses so far have been David Pecker, about whom Trump told FBI Director Comey: “He knows more about me than you do.” And a woman described as Trump’s “gatekeeper” for, what, 20 years. Trump even tried to hug her when she left the courtroom. I’m sure that proved to the jury what a “radical leftist” she is.

Except It’s More Like 5 Hours A Day

...with a break for lunch, and Wednesdays off.

Most working stiffs in America would consider that a cushy job. Especially if all you had to do was stay awake. Or nap, nobody’s stopping you. 😴 

And he owns his own golf courses. ⛳️ 

Well, That And Polls Just Suck

The only time polls are validated (as opposed to “38% of the country think Apple pie is unAmerican”) is during election years.

Every election year, the polls are wrong. This is explained as one party “underperforming” or “over performing.”

Predictions in economic reports “exceed expectations” (good), or fail to meet expectations (bad). But the numbers are generally reliable; or they are corrected a bit later.

Pollsters pledge to “fix it” and “get it right next time.”

Rinse. Repeat.

Polls are garbage. πŸ—‘️ 


Who Are Two Notorious Adulterers And Donald Trump?

The divine right of Kings named Trump. Oddly enough, nobody did. Message received. So maybe back off in the Sulzberger stories, huh?πŸ€” 

The πŸ₯©πŸ₯© Are High!

"Justice Merchan has yet to issue a ruling on whether to find Mr. Trump in contempt. While prosecutors have argued that Mr. Trump is 'angling' to be arrested, some people close to Mr. Trump insist privately that, for all his bravado, he desperately wants to avoid jail," the Times is reporting before adding, "... Justice Merchan set a new hearing for this week in which, once again, the former president’s statements will be in the spotlight: dissected, considered and, ultimately, judged."
He’s starting to worry about how his steaks will be cooked.
“The trial has been a jarring shift for a man who is rarely confined to silence, often around people paying to see him, and used to spending his days making phone calls, holding meetings, reading newspapers, tending to his properties, taping videos and peacocking around his Mar-a-Lago Club in Florida," the outlet reported. "Trump has also long prized having control of many of the details in his day-to-day life, people familiar with the matter said." 
Specifically, the report notes that Trump "largely avoids restaurants outside his properties because he wants control over the food — particularly how his steak is cooked." 
"He has avoided certain hotels on the road, telling advisers he prefers a Holiday Inn Express, because the bathroom floors are light colored and he can see if there is dirt. At his property, he controls the music — both the song choice and the volume. He was personally involved in renovating his plane, asking for constant updates, and complained about having to use the private planes of others while his was in the shop for over a year," the report states.
Can he even get McDonald’s in jail? “Your honor, this is cruel and unusual punishment!”


The Reports Are In From Bizarro World πŸ—Ί️

Fitzgerald v Trump

 The Supreme Court followed Fitzgerald slavishly in oral arguments, and that’s the problem.

Fitzgerald comes in three parts:, majority opinion (joined by then Justice Rehnquist), the concurring opinion by Chief Justice Burger, and the dissent by Justice White. While I don’t disagree that Presidents should be free from the threat of civil suits while in office (which are privately controlled and can be frivolous), the threat of a rogue prosecutor, or even a vengeful successor to office (i.e., Trump. In all the years of the Republic, he’s the only credible threat.), is virtually non-existent. The fear of a vengeful prosecution also undermines the bedrock principles of a grand jury and a petit jury protecting justice. The system, in other words, has checks and balances.

I mention that familiar phrase because it is not in the constitution, but we all take it as “constitutional.” Fitzgerald mocks the dissent for relying on the concept that “no man is above the law,” because that phrase is not found in the constitution. By the majority makes much of the concept of “separation of powers,” another phrase not found in the Constitution.

That, by the way, is where Marbury comes in; in the majority opinion, I mean. There’s a “technical” argument, which I’ll skip for the moment, because the legal foundation of “separation of powers” actually comes from Marbury. Fitzgerald uses Marbury to support the separation doctrine, both for the Presidency (and so protect it from civil suits), and, of course, for the courts. But are the courts independent?

Congress establishes how many there are, and what their jurisdiction and venue are. Congress establishes the cases the Supreme Court must, or can, review, a power it effectively transferred (in part) to the Court in the Judicial Act of 1925. And what Congress granted, Congress can take away again.

Congress appoints judges and justices, establishes all court systems (judiciary, bankruptcy, patent, to name a few), establishes the number of courts and appellate justices and Supreme Court justices; and sets their pay.  It even sets rules for judicial retirement.

The courts have independence; but that independence depends upon the agreement of the Congress, and the people. The court is literally the most dependent branch of government established by the Constitution. Art. III establishes only a judicial system and the court that sits atop it. Everything else is left to Congress. Separation of powers? Independent branch of government? Third branch of government? That’s all extra-constitutional, most of it established in law by: the courts.

That makes it a very delicate balance, indeed. Justice Kavanaugh said Trump’s immunity appeal was not just about the case before the Court. He was all but quoting Burger’s concurrence. The Court in Fitzgerald was reaching out to establish a broad principle, one I actually agree with. But the rap on Roe was that the result was right, just the legal reasoning was poor. It was overruled by an equally poorly reasoned opinion, aimed solely at achieving the desired result.

The dissent in Fitzgerald makes this point; that both the reasoning and the conclusion are unsound (otherwise it would be a concurrence, wouldn’t it?). The dissent argues that the majority opinion threatens the separation of powers, and places the sitting President above the law. Not as high above as criminal immunity; but too high for the four dissenting justices.

Of course, the difference between Fitzgerald and Trump (the case), is that Fitzgerald involved civil damages against an acting President, and Trump involved criminal charges against an individual who happens to wield enormous power because of a constitutional election.

The remedy forestalled by Fitzgerald is damages for an injury allegedly arising from the conduct of the office (“official acts”). What is the remedy for criminal actions taken by the sitting POTUS? Immunity, because criminal process might be abused? Funny how the doesn’t stop poor people and in-white people from being arrested and charged on a daily basis. Maybe immunity for Presidents has something to do with protecting powerful white men from lesser actors?

It’s not an idle or ill-founded question.

The existence of alternative remedies and deterrents establishes that absolute immunity will not place the President "above the law." For the President, as for judges and prosecutors, absolute immunity merely precludes a particular private remedy for alleged misconduct in order to advance compelling public ends.

The weakness of the analysis in Trump relying on Fitzgerald is highlighted here, because Fitzgerald ultimately rests on that issue: “absolute immunity merely precludes a particular private remedy for alleged misconduct.” What private remedy is there for an alleged crime? Civil suits are fundamentally a private remedy. The DOJ has rules against prosecuting a sitting POTUS. In over 200 years, we’ve never had to prosecute a president for crimes committed in office. Maybe what’s changed is Trump, not our ideas of governance.

True, Trump need not be granted absolute immunity from criminal liability. But then why consider a general rule applicable to all hypotheticals, rather than only the facts presented by the indictment? Here, again, although the argument relied on it, Fitzgerald offers no support:

A rule of absolute immunity for the President will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive. There remains the constitutional remedy of impeachment. In addition, there are formal and informal checks on Presidential action that do not apply with equal force to other executive officials. The President is subjected to constant scrutiny by the press. Vigilant oversight by Congress also may serve to deter Presidential abuses of office, as well as to make credible the threat of impeachment. Other incentives to avoid misconduct may include a desire to earn reelection, the need to maintain prestige as an element of Presidential influence, and a President's traditional concern for his historical stature.

How many of those restraints affect a President determined to commit crimes? Trump, after all, called for violence at the Capitol, aimed at Members of Congress, in order to overturn the election. That’s the essence of the criminal charges against him. It’s also Justice White’s argument in Fitzgerald:

The Court now applies the dissenting view in Butz to the Office of the President: a President, acting within the outer boundaries of what Presidents normally do, may, without liability, deliberately cause serious injury to any number of citizens even though he knows his conduct violates a statute or tramples on the constitutional rights of those who are injured. Even if the President in this case ordered Fitzgerald fired by means of a trumped-up reduction in force, knowing that such a discharge was contrary to the civil service laws, he would be absolutely immune from suit. By the same token, if a President, without following the statutory procedures which he knows apply to himself as well as to other federal officials, orders his subordinates to wiretap or break into a home for the purpose of installing a listening device, and the officers comply with his request, the President would be absolutely immune from suit. He would be immune regardless of the damage he inflicts, regardless of how violative of the statute and of the Constitution he knew his conduct to be, and regardless of his purpose. The Court intimates that its decision is grounded in the Constitution. If that is the case, Congress cannot provide a remedy against Presidential misconduct, and the criminal laws of the United States are wholly inapplicable to the President. I find this approach completely unacceptable. I do not agree that, if the Office of President is to operate effectively, the holder of that Office must be permitted, without fear of liability and regardless of the function he is performing, deliberately to inflict injury on others by conduct that he knows violates the law. We have not taken such a scatter-gun approach in other cases. Butz held that absolute immunity did not attach to the office held by a member of the President's Cabinet, but only to those specific functions performed by that officer for which absolute immunity is clearly essential. Members of Congress are absolutely immune under the Speech or Debate Clause of the Constitution, but the immunity extends only to their legislative acts. We have never held that, in order for legislative work to be done, it is necessary to immunize all of the tasks that legislators must perform. Constitutional immunity does not extend to those many things that Senators and Representatives regularly and necessarily do that are not legislative acts. Members of Congress, for example, repeatedly importune the executive branch and administrative agencies outside hearing rooms and legislative halls, but they are not immune if, in connection with such activity, they deliberately violate the law. United States v. Brewster, 408 U. S. 501 (1972), for example, makes this clear. Neither is a Member of Congress or his aide immune from damages suits if, in order to secure information deemed relevant to a legislative investigation, he breaks into a house and carries away records. Gravel v. United States, 408 U. S. 606 (1972). Judges are absolutely immune from liability for damages, but only when performing a judicial function, and even then they are subject to criminal liability. See Dennis v. Sparks, 449 U. S. 24, 449 U. S. 31 (1980); O'Shea v. Littleton, 414 U. S. 488, 414 U. S. 503 (1974). The absolute immunity of prosecutors is likewise limited to the prosecutorial function. A prosecutor who directs that an investigation be carried out in a way that is patently illegal is not immune.

So is the correct understanding of immunity that which attaches to the office? Or to the act? That’s what allows for hypotheticals. But does it require them? More to the point, does this require them? The dissent in Fitzgerald cites case law for particulars. There are none for criminal immunity, but some Justices in Trump’s case insisted random thought experiments must be conducted before any conclusions in this case can be drawn. 

Perhaps the Court will justify its concerns with Marbury:

“the question, whether the legality of an act of the head of a department be examinable in a court of justice or not must always depend on the nature of that act."

And it’s the nature of Trump’s acts that is still at issue. I think only Thomas, Alito, and Kavanaugh think the hypotheticals are the most important thing. But Justice Barret seems to think otherwise:

Which could lead her to be aware of this: Which probably seems like a strong argument to Trump, but Justice Barrett already has their number.

And while we’re floating hypotheticals:
Should the decisions about presidential immunity (which must ultimately be modifiable) come before, or after, the murders?

Some Justices insisted on hypotheticals, but in the end it was only clearly three. Barret seemed skeptical, even incredulous. Roberts gutted the VRA, but does he want his tenure to be synonymous with the case that gave Trump immunity for his crimes? Roberts can say the VRA can be rewritten. How do we rewrite American history if Trump wins office again and commits crimes with impunity, crimes he can’t start to be tried for until after his term? What Court legacy is that? 

The situation is worse than it should be (even the argument for remand for further hearings is not supported by Fitzgerald’s reasoning). But that doesn’t mean it will be as bad as it could be. Roberts could vote with Alito, Thomas, and Kavanaugh, to remand to Chutkan for further fact-gathering; but that would still require Barret to make it happen. Based on the arguments, I don’t think that will happen.


Saturday, April 27, 2024

WHCD 2024

Pretty Sure What He’s Describing…

...dates back to the FDR administration.

I Wonder If The Supremes Are Taking This Scenario Into Consideration πŸ€”

Friday, April 26, 2024

Um πŸ˜•

According to information obtained Friday, Johnson said once the troopers began using force on the students around 10 p.m., the state troopers on the roof switched to long-range firearms as part of their protocol. 
“Ohio State Highway Patrol provided overwatch support, which is a standard safety measure when they assist with large gatherings,” Johnson’s statement said. “We don’t discuss specific public safety protocols. In general, overwatch support is armed, and the team carries standard equipment, including firearms, that would only be used reactively to protect the safety of all present, including demonstrators.”
This is where I remind the audience that none of the four dead students at Kent State in 1970 were part of the demonstration.

And the National Guard were completely exonerated, and the students (who were just on campus) were blamed.