I don't think anyone expected the Court to issue a decision so trimmed to help Trump personally. Not @ElieNYC, not @Dahlialithwick, not me. We all thought they'd take the high road after the low road of delay. Instead, this decision was designed to help Trump.
Steve Bannon: Here's what's going to happen in another Trump administration. A whole big part of Trump's Project 2025 is going into the apparatus, into the post-Constitutional leviathan, and starting to take apart the administrative state brick by brick. I have 900 pages right… pic.twitter.com/W2H7T9SnQt
Trump and his henchmen may all be convicted felons but what Steve Bannon says there is absolutely true. I’m sure he’ll be writing all that out in his Mein Trumpf manifesto from jail.
Here he is before surrendering this morning:
Priest shows up outside Danbury prison to say a prayer over Steve Bannon as he is about to go in: “Father, don’t pray for me, pray for our enemies. They’re the ones that are going to need the prayers!” pic.twitter.com/3g8b8LsylL
"Lock him up! Lock him up!" — Steve Bannon and Marjorie Taylor Greene are trying to hold a news conference right now and it's not going well pic.twitter.com/5AvgXGcqxM
Marge is now ranting that Pelosi wanted MAGA J6ers to kill her: “I was a brand new Member of Congress. I’d only been there 3 days. I could’ve been killed because of Nancy Pelosi!” pic.twitter.com/YiRrPOySdC
Trump v. United States is an astonishing opinion. It holds that presidents have broad immunity from criminal prosecution — essentially, a license to commit crimes — so long as they use the official powers of their office to do so.
Broadly speaking, Chief Justice John Roberts’s majority opinion reaches three conclusions. The first is that when the president takes any action under the authority given to him by the Constitution itself, his authority is “conclusive and preclusive” and thus he cannot be prosecuted. Thus, for example, a president could not be prosecuted for pardoning someone, because the Constitution explicitly gives the chief executive the “Power to Grant Reprieves and Pardons for Offences against the United States.”
One question that has loomed over this case for months is whether presidential immunity is so broad that the president could order the military to assassinate a political rival. While this case was before a lower court, one judge asked if Trump could be prosecuted if he’d ordered “SEAL Team 6 to assassinate a political rival” and Trump’s lawyer answered that he could not unless Trump had previously been successfully impeached and convicted for doing so.
Roberts’s opinion in Trump, however, seems to go even further than Trump’s lawyer did. The Constitution, after all, states that the president “shall be commander in chief of the Army and Navy of the United States.” So, if presidential authority is “conclusive and preclusive” when presidents exercise their constitutionally granted powers, the Court appears to have ruled that yes, Trump could order the military to assassinate one of his political opponents. And nothing can be done to him for it.
As Justice Ketanji Brown Jackson writes in dissent, “from this day forward, Presidents of tomorrow will be free to exercise the Commander-in-Chief powers, the foreign-affairs powers, and all the vast law enforcement powers enshrined in Article II however they please — including in ways that Congress has deemed criminal and that have potentially grave consequences for the rights and liberties of Americans.”
Roberts’s second conclusion is that presidents also enjoy “at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.” Thus, if a president’s action even touches on his official authority (the “outer perimeter” of that authority), then the president enjoys a strong presumption of immunity from prosecution.
This second form of immunity applies when the president uses authority that is not specifically mentioned in the Constitution, and it is quite broad — most likely extending even to mere conversations between the president and one of his subordinates.
The Court also says that this second form of immunity is exceptionally strong. As Roberts writes, “the President must therefore be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’”
Much of Roberts’s opinion, moreover, details just how broad this immunity will be in practice. Roberts claims, for example, that Trump is immune from prosecution for conversations between himself and high-ranking Justice Department officials, where he allegedly urged them to pressure states to “replace their legitimate electors” with fraudulent members of the Electoral College who would vote to install Trump for a second term.
Roberts writes that “the Executive Branch has ‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute,” and thus Trump’s conversations with Justice Department officials fall within his “conclusive and preclusive authority.” Following that logic, Trump could not have been charged with a crime if he had ordered the Justice Department to arrest every Democrat who holds elective office.
Elsewhere in his opinion, moreover, Roberts suggests that any conversion between Trump and one of his advisers or subordinates could not be the basis for a prosecution. In explaining why Trump’s attempts to pressure Vice President Mike Pence to “fraudulently alter the election results” likely cannot be prosecuted, for example, Roberts points to the fact that the vice president frequently serves “as one of the President’s closest advisers.”
Finally, Roberts does concede that the president may be prosecuted for “unofficial” acts. So, for example, if Trump had personally attempted to shoot and kill then-presidential candidate Joe Biden in the lead-up to the 2020 election, rather than ordering a subordinate to do so, then Trump could probably be prosecuted for murder.
But even this caveat to Roberts’s sweeping immunity decision is not very strong. Roberts writes that “in dividing official from unofficial conduct, courts may not inquire into the President’s motives.” And Roberts even limits the ability of prosecutors to pursue a president who accepts a bribe in return for committing an official act, such as pardoning a criminal who pays off the president. In Roberts’s words, a prosecutor may not “admit testimony or private records of the President or his advisers probing the official act itself.”
That means that, while the president can be prosecuted for an “unofficial” act, the prosecutors may not prove that he committed this crime using
That. Is. Terrifying.
We are on the verge of electing an already convicted criminal who has also been found liable for rape and defamation to this office. If there is a better argument for voting for Biden or anyone else I don’t know what it is. Trump is a corrupt criminal already. Now they’ve given him carte blanche to break any laws he wants.
If there’s one bright spot in the very dark weekend just passed it’s that we didn’t have to hear much from Donald Trump and his henchmen. He was very unhappy about that and whined on his Truth Social platform that nobody was giving him the credit he deserved:
Mostly he’s just been yelling at the clouds while his people have been keeping a low profile. It’s been years since we’ve had such a respite and it almost makes the hell of this Biden debate debacle bearable. Almost. It’s been a very rough few days and from the looks of it it’s not going to let up any time soon.
We’re still awaiting the poll results to see if voters have decided to vote for Trump in light of Biden’s miserable debate performance last Thursday. We’ve seen some numbers that show more people think he shouldn’t run for president again than said that last month but the number was always pretty high. (A majority say the same thing about Trump although fewer than say it about Biden.) But we haven’t yet seen the effects of the debate on voter preferences. Those will start coming in over the next few days and we’ll get a much better sense of just how serious the damage is among actual voters.
Among political pundits and analysts it has been catastrophic. While there are those who say that Biden should stay the course and, so far, the Democratic establishment is backing the president, the vast majority of liberal writers, talking heads and newspaper editorial boards have decided that Biden must go. It’s easy to just dismiss those voices and say they don’t reflect the needs and desires of the American people but it would be a huge mistake to underestimate how hard it will be for Biden to have to fight both Trump and a media establishment that is convinced that he should withdraw from the race. As Biden would say, it’s a big f-ing deal.
Part of this is driven by the fact that many members of the press apparently believe that they were lied to by the White House about Biden’s fitness and are personally offended by that. Throughout many of the op-eds and analyses of the situation is a clear sense of self-righteous anger running through them that they were not let in on the secret. It’s not an uncommon reaction. I recall that the media had a similar solipsistic view of President Bill Clinton’s refusal to admit to them that he had had an affair with a White House employee. In that case the public had a much more nuanced opinion of the scandal and the beltway media’s objections didn’t carry much weight. Clinton not only survived, he had a high approval rating and kept it throughout the rest of his term.
Of course, Bill Clinton wasn’t running for re-election. His Vice President Al Gore was and he paid the price with the media which treated him woefully during that election, largely as a result of the burning resentment they felt toward Clinton. You’re all familiar with how that went. And you know how the lingering effects of that relationship dogged Hillary Clinton over the next 16 years as she pursued her own political career.
Here’s an example of how the new media narrative is shaping up, from media reporter Brian Stelter who says it’s now a referendum on Biden and there’s no more reason to bother covering Trump’s lies since his base and the GOP’s elites don’t care.
To those who say "what about Trump's lies:" There's been no shortage of media coverage of his conduct. But his base doesn't seem to care. GOP elites have mostly made peace with Trump's lies. Conversely, many Dems are very concerned about Biden's capability, so it's more salient.
So, even if the public decides that Biden’s performance wasn’t a deal breaker and his numbers have remained close to Trump’s despite the voters’ clear concerns about him, he’ll have an even tougher uphill climb that he already had with that media narrative. It’s not illogical or untoward even for people who think Biden should stick it out to be genuinely concerned about that since the stakes are so high.
While that may be the prevailing consensus among the media, what should happen next is not so clear. There are people demanding an open convention in which there would be a floor fight and delegates rather than voters would decide who the candidate should be. I maintain, as I did right after the debate, that as entertaining as it might be, it would likely be a disaster. The Democratic Party is not known for its discipline and cohesion on a good day. The last thing they need is a knock down drag out internecine fight before the whole country just two months before the election.
In my view that leaves only one option. If Biden decides that in good faith he can’t continue, the only answer is for him to formally pass the torch to his Vice President, the person 81 million people voted for four years ago to replace him if he could not longer be president through illness or death. {Let’s face it, as the oldest president in history we were all very aware of that possibility.} If that’s more or less happened now there’s no reason to look anywhere but the person who has been on the ticket from the beginning for that very purpose. That’s why we have Vice Presidents.
Yes, it’s meant for a president’s term not a campaign but the principle is the same, particularly under these conditions. It’s just too late for a full blown nomination battle. If this happens the party should strive for a seamless transition that’s seen as a continuation of the Biden administration and the Biden campaign that’s already been laid out. There’s no time to completely re-tool.
And there are important technical reasons for that as well. As legal historian Mary Beth Williams pointed out on twitter, the campaign war chest assembled by the Biden Harris campaign cannot be easily transferred to any other candidate. (You’d have to get the permission of every original donor.) She writes:
The B-H campaign fund can donate to candidates, but is subject to the same limits as individual contributors.
Any or all of the war chest can be transferred to federal, state, and/or local political parties, but then the limits on party donations to candidates are in effect. It can also be transferred to a super-PAC, but no coordination with campaigns is allowed.
The DNC could run the general election campaign, but my experience on three “coordinated campaigns” (Gore, Kerry, and Obama ’08,) leaves me very cold on that option.
It took B-H four years to build that war chest, and no candidate could come close to raising that amount in four months. Plus, all the media time is already purchased, the campaign offices are contracted, staff hired, etc.
The only two candidates with full, easy access to all that money and infrastructure are Biden or Harris.
Harris is being a loyal soldier and has been out there forcefully backing Biden. And if he decides to stay in, the campaign should make sure that she stays front and center going forward because all eyes will be on her like never before. Whether anyone wants to admit it, the prospect of a Vice President having to step in, one way or another, has never been so acute.
The next couple of weeks are going to be agonizing for everyone, not the least of whom is Joe Biden himself. James Fallows put it well in a tweet on Sunday: be wary of anyone who says this is an easy call.
The most consequential decision yet from the six-justice Roberts supermajority was sandwiched between President Biden’s debate pratfall Thursday night and this morning’s Supreme Court decision on former President Trump’s immunity from criminal prosecution. So before it gets wiped clean from the front pages, I want to just take a moment before the immunity decision comes down to re-cast the current court.
The Supreme Court’s decision Friday to overrule Chevron will have vast consequences, many of then unseen or hard to detect, but one of the things we were discussing internally Friday as we assessed the Supreme Court’s term and its four years with a 6-3 conservative supermajority is how the defining characteristic isn’t conservatism at all but the accrual of power to the judiciary at the expense of the executive and legislative branches.
Rather than taking a conservative view of the role of the courts – a modest, humble, restrained posture that is wary of its own power and applies it carefully – the Roberts supermajority has taken a radical course where the judiciary is increasingly the final arbiter not just on the law but on the facts, the interpretation of those facts, the application of those facts in given situations, and the technical, scientific, and professional implications of those facts in the real world.
There’s nothing conservative about it, and you only have to look to conservatives’ exact same complaints about the Warren and especially the Burger courts to see the obvious. We’ve taken to calling the court “right wing” rather than conservative because it’s a more precise description (though it’s still a pretty blunt term). Rather than being driven by a guiding conservative judicial philosophy, however odious it might have been, the current Supreme Court is most consistent when it comes to consolidating power for itself.
It’s one decision after another, wiping out precedent, common sense and centuries of understanding about the meaning of the constitution. They are taking a wrecking ball to the rule of law and our government’s ability to function as a 21st century society.
If you wonder just how far this immunity really stretches:
Roberts: “And some Presidential conduct — for example, speaking to and on behalf of the American people — certainly can qualify as official even when not obviously connected to a particular constitutional or statutory provision.”
So when Trump tells his mob to march to the capitol and fight like hell or they won’t have a country anymore, it’s part of his official duty because he’s speaking “to and on behalf” of the American people? I’m guessing he means yes.
The January 6th case will not be tried before the election, but we knew that. The Supremes decided that presidents are immune from prosecution for their “official acts” and sent the J6 case back to the district court to decide which charges may apply. They explicitly said that his attempts to force the Department of Justice to lie for him and say that they found evidence of fraud when they did not are official acts. So I think it’s fair to say they believe the definition of “official” is extremely broad.
It will take a bit to digest this but it’s clear that it’s pretty bad. If you don’t believe me, read this excerpt from Justice Sotomayor’s dissent:
“When [the president] uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune. Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today. Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.”
The Chief Justice also decimated the independence of the DOJ with this opinion as a bonus:
If you thought Trump was an existential threat before wait until you see what happens if he wins another term and becomes a veritable King.
Update:
The majority opinion in Trump says that (1) official acts can't be evidence; and (2) motive is irrelevant.
If that's the case, how could a president ever actually *be* prosecuted for ordering the military, in his capacity as commander in chief, to kill his chief political rival?
With all the freaking out about Joe Biden and the debate, I keep thinking about the 1984 presidential election. Ronald Reagan, who was in his mid 70s, had a really weak first debate performance, and the political chattering classes came out wondering if he was too old to be president. The dynamic was just like it is today. There was one major difference, though: in that election, the Republican Party universally rallied around their president, reassuring the press and public that he was just fine. In the next debate, Reagan did better, and their campaign rolled on to one of the most decisive wins in American history, a landslide the size of which we haven’t seen since.
There is something about the culture of our Democratic Party that reacts to a setback with panic instead of steady determination and rallying around the flag. We need to calm ourselves down and buck the f’’k up.
Yeah, I know: Biden wasn’t exactly full of youthful energy at that debate. But I do have a question: did y’all not know he was an old guy? That he would be slow in walking to the podium? That he would stumble over some words? As they might say in Casablanca: how shocked are you that there is gambling in this establishment?
But Democrats should not be so quick to forget another set of facts about Joe Biden: he has been the best and most effective president since FDR. He has passed more major legislation, including more than $4 billion in investments in our people and economy, than any president since the New Deal. He has signed the best set of executive orders of any president maybe ever. His appointees at DOJ, the FTC, the SEC, the NLRB, and other key agencies of government have done more to take on corporate greed, monopoly power, and price gouging than any in almost a century.
Why are we talking about dumping the best president in modern history because he had a weak debate performance and is a little old?
Reagan, the next oldest president in American history, was — unfortunately, because his policies were terrible — the most effective, influential, and successful president in modern history. He went on from that debate stumble not only to win re-election decisively, but to also decisively reshape the way American government has worked in the 40 years since. Joe Biden, unlike the younger and hipper Democratic presidents after Reagan, has begun to finally wrest our government back from the big corporate serving policies of the GOP to a policy agenda that seeks to help working families.
With that track record of success, the idea that Democrats should dump Biden after one shaky debate performance is profoundly wrong. We need to rally around the flag, gang, and fight like warriors to get the best president of our lifetimes re-elected.
And folks, we are positioned to win this election.
We have a far more popular agenda than the right wing’s monstrous proposals. (Google Project 2025 if you want to check out their workshop of horrors.) We have a track record of remarkable legislative and executive branch accomplishments that is superior to any president at least since LBJ. We have a series of powerful issues — abortion rights, health care, green energy jobs, infrastructure, Social Security, veterans benefits, rebuilding our manufacturing base, and taking on Big Pharma, monopoly power, and price gouging — where we have the political high ground. And we are running against the most horribly flawed candidate of all time.
So my fellow Democrats, it is time to stop freaking out and time to stop worrying about one bad debate. We have an election to win and only about four months to do it. Let’s kick our fighting spirit into full gear, and knock on doors, make calls and texts, take our case to social media, reach out to our friends, and give money. Let’s stop worrying and get to winning.
As the late, great Stan Lee would advise, “‘Nuff said.”
Except:
America: Let's #BucktheEffUp and get back into the fight.
From the moment the first African captives arrived on these shores 400 years ago, this land offered white people of every station one ironclad guarantee. Enslaved people were not just property, nor just unpaid agricultural workers and house servants. They’d been assigned a permanent place on the lowest rung of the social ladder. No matter what misfortunes might befall whites, at least they weren’t Black. The New World offered Europeans not only economic opportunity but a guaranteed social floor below which they could not fall.
(Four hundred years later, women still struggle to break through a glass ceiling.)
For some reason, that was on my mind while making coffee. It was on Heather Cox Richardson’s last night in the context of Donald Trump’s comments Thursday night about immigrants taking “Black jobs” and “Hispanic jobs.” It’s a textbook case of the ruling-class, divide-and-dominate ploy from the cartoon above.
In U.S. history it has been commonplace for political leaders to try to garner power by warning their voters that some minority group is coming for their jobs. In the 1840s, Know-Nothings in Boston warned native-born voters about Irish immigrants; in 1862 and 1864, Democrats tried to whip up support by warning Irish immigrants that after Republicans fought to end enslavement, Black Americans would move north and take their jobs. In the 1870s, Californian Denis Kearney of the Workingman’s Party drew voters to his standard by warning that Chinese immigrants were taking their jobs and insisted: “The Chinese Must Go!”
As Tevye the milkman instructed, it’s a tradition, and not a new idea here:
“In all social systems there must be a class to do the menial duties, to perform the drudgery of life,” South Carolina senator James Henry Hammond told his colleagues in 1858. “That is, a class requiring but a low order of intellect and but little skill. Its requisites are vigor, docility, fidelity. Such a class you must have, or you would not have that other class which leads progress, civilization, and refinement. It constitutes the very mud-sill of society and of political government; and you might as well attempt to build a house in the air, as to build either the one or the other, except on this mud-sill.”
Capital produced by the labor of mudsills would concentrate in the hands of the upper class, who would use it efficiently and intelligently to develop society. Their guidance elevated those weak-minded but strong-muscled people in the mudsill class, who were “happy, content, unaspiring, and utterly incapable, from intellectual weakness, ever to give us any trouble by their aspirations.”
Aspirations to sharing power, that is. Allow mudsills to vote and society would “be reconstructed, your government overthrown, your property divided,” Hammond warned.
The only true way to look at the world was to understand that some people were better than others and had the right and maybe the duty, to rule. “I repudiate, as ridiculously absurd, that much-lauded but nowhere accredited dogma of Mr. Jefferson, that ‘all men are born equal’” Hammond wrote, and it was on this theory that some people are better than others that southern enslavers based their proposed new nation.
“Our new government is founded…upon the great truth that the negro is not equal to the white man; that slavery subordination to the superior race is his natural and normal condition. This, our new government, is the first, in the history of the world, based upon this great physical, philosophical and moral truth,” Alexander Stephens, vice president of the Confederacy, told supporters.
That this vision for the country ran contrary to the one advanced in the Declaration (nominally, at least) was of no concern. Treating everyone as born equal would violate the implicit contract with whites guaranteed by Black enslavement. The ruling class always places property and contractual rights ahead of human rights.
But not Abraham Lincoln, Richardson reminds:
Arguments that some races are “inferior,” he said, would “rub out the sentiment of liberty in the country, and…transform this Government into a government of some other form.” The idea that it is beneficial for some people to be dominated by others, he said, is the argument “that kings have made for enslaving the people in all ages of the world…. Turn in whatever way you will—whether it come from the mouth of a King, an excuse for enslaving the people of his country, or from the mouth of men of one race as a reason for enslaving the men of another race, it is all the same old serpent.”
[…]
He went on to tie the mudsill theory to the larger principles of the United States. “I should like to know if taking this old Declaration of Independence, which declares that all men are equal upon principle and making exceptions to it, where will it stop,” he said. “If that declaration is not the truth, let us get the Statute book, in which we find it and tear it out!” To cries of “No, no,” he concluded to cheers: “Let us stick to it then. Let us stand firmly by it.”
Ironically, ten years after Hammond’s speech, the defeated South was undergoing the sort of economic and social reconstruction he feared. The resistance led by the Ku Klux Klan ensured that Reconstruction would fail. It wasn’t race-hatred that drove them, I’d argue, as much as hatred of the idea that freed Blacks would share power as whites’ equals. That was a violation of the contract that guaranteed a social floor below which no white man, no matter how poor, could fall. Race is a part of that sentiment, but skin color has always been a handy shorthand for telling in any crowd just who’s who in the pecking order. The South had just fought and lost a devastating war to preserve that order. Even whites with no human property fought to preserve it.
If you can convince the lowest white man that he’s better than the best colored man, he won’t notice you’re picking his pocket. Hell, give him somebody to look down on, and he’ll even empty his pockets for you. — Sen. Lyndon Baines Johnson of Texas to Bill Moyers (1960)
The promise behind Trump’s pledge to make America “great again” is revealed once again in Trump’s warning that immigrants will take “Black” and “Hispanic” jobs. “Careful, that foreigner wants your cookie,” is his message to nonwhites. The coded message to his nearly all-white MAGA faithful is that, yes, there are still castes of people in this country that represent a social floor below which they can never fall. And Trump promises to guarantee that the mudsills stay there lest society “be reconstructed, your government overthrown, your property divided.”
“Anyone who sees the world through such a lens is on the wrong side of history,” Richardson insists.
More than that, they stand against the very idea behind the flag in which they drape themselves. Remind them every chance you get.
