Sort of

Lawyers are right this minute arguing that Donald “91 felony indictments” Trump should be immune from criminal prosecution for acts he took during his White House tenure.

“Circuit judge Florence Pan is putting Trump lawyer John Sauer in a tough spot,” writes The Guardian’s Hugo Lowell.

Sauer is still arguing that Trump is not an “officer” of the U.S.

You can listen along to the arguments here.

On the SEAL Team Six scenario above, Brian Beutler takes on the argument that Trump should be held to a special standard. We all know how special he is, don’t we?

Beutler’s “We Can’t Afford Weak-Kneed Liberalism In The Trump Era” refers specifically to objections to disqualifying Trump from the ballot based on the 14th Amendment. Just to get you started:

Boiled down, the argument is this: Donald Trump should be held to a special standard, not written into the Constitution, because applying the law to him faithfully is unfair to Republicans, and may allow them to engage in tit-for-tat retribution. 

Both of these objections are easily refuted.

Consider Jonathan Chait’s most recent piece, restating his opposition to the disqualification effort, which he describes as a “gambit.”

Chait maintains his objection is political, not legal, but it is actually both—he’s making a case for the Supreme Court to invent new law to reach what he believes would be a politically expedient outcome. 

The legal aspect of his reasoning centers on standards of evidence: The allegation that Trump “engaged in insurrection” is contestable, and since Trump contests it, the public will never fully accept his disqualification. The Supreme Court should thus reverse state-level decisions disqualifying him on what are ultimately due-process grounds. 

Politics may be animating this argument, but it is an argument about the law and how it should be applied. The legal question of whether Trump’s conduct matches the meaning of “engaged in insurrection” is at the heart of all academic and judicial opinions supporting his removal from the ballot. Chait appears driven by fear of the consequences of applying the law to Trump, so he’s adopted the legal view that the 14th amendment shouldn’t be applied to Trump without the strictest possible scrutiny. That’s a legal mechanism—it just happens to be an atextual one. 

THE FAFO DOCTRINE

The unfairness point is easiest to rebut. Chait argues Trump should be held to this invented standard under the law because, “the timing and political stakes of this case require incontestable certainty.” It’d be wrong to apply the law as written (no criminal conviction required!) because it’d be unfair to Republicans. “If the Court were contemplating a Trump disqualification a year or two ago, when the Republicans had more time to organize their alternatives, it might have allowed a more forgiving threshold of truth,” he argues.

The glaring weakness here is that Republicans are real adults, making decisions for themselves, with a mix of real and fake information, and the fact that their leader engaged in insurrection and might thus be disqualified from office was not hidden from them at any point. They called it an insurrection. They acknowledged Trump’s culpability. Then they decided to reanoint him as their leader. This strikes me as Their Problem, not Our Problem.

And, oh-my-god, there is the risk of tit-for-tat by Republicans!

When playing procedural or constitutional hardball, be sure not to create new norms that sunder the whole constitutional order. Fortunately that is not a major concern here. It’s more an indication that Republican mind games are having their intended effect of making liberals doubt themselves. 

I’ve watched Democrats cringe like abused spouses since at least the GOP sweep of 1994. “But what will Republicans do?” (To us.) They pull their punches. They often don’t throw any. What if they call us bullies?

Who wants to vote for that?

Update:

What if we don’t win by being blandly palatable but rather by saying what we’re for?