No Balls at All

No, Charles Blow, Democrats are not “bringing their letter openers to a gunfight.” And in no way, shape, or form are they “scared witless.”

Democrats face an unprecedented and challenging situation. It shows neither lack of wit nor shrunken cojones to proceed cautiously and think carefully about how to play the cards they have.

Jerry Nadler is a mensch. And so is Nancy Pelosi.

Mr. Blow’s colleague David Brooks makes the opposite mistake: accusing Nadler of declaring a bogus constitutional crisis.

Jonathan Chait roasts Brooks on a spit and eats him for lunch.

Em … em … good.

We do have a constitutional crisis on our hands. Crises are not handled well by folks who stick their heads in the sand. Nor is JUST DO SOMETHING!!! likely to lead to an optimal outcome. Cojones are wonderful, but you need to think with your frontal lobe.

Get a grip, people.

trucknutz

Should We Rend Our Garments? Or Should We Just Savor the Sour Smell of the Flop Sweat?

Jeffrey Toobin, The Constitutional System is not Built to Resist Trump’s Defiance of Congress

Washington Post Editorial Board, Don’t let Trump run out the clock in court

Greg Sargent, The big unanswered question at the core of Trump’s corruption

checks-and-balances.org

Toobin—who, I think, should know better—goes the garment-rending route, lamenting that there is no effective constitutional check on Trump’s ability to stonewall. Sargent, meanwhile, savors the flop sweat, and expatiates on the point that Trump, sure as shootin’, is mighty scared of something. (Could it be that he’s been running a criminal enterprise, fueled by Russian mob money?)

There are lots of things we don’t know, and a few things we do know, or at least should know.

We know that, in the next weeks and months, it will be up to the courts to deal with Trump’s stonewalling of Congress. We don’t know how well or how badly the courts will do their job. But we can anticipate, I believe, that if the courts do their job—I said “if”—Trump will probably defy the courts just as he is defying Congress. And we can reasonably anticipate that, if and when Trump defies the courts, it will be up to other institutions—maybe including the military—to uphold the Constitution, or just to let the country devolve into a banana republic.

As I said, we don’t know what the courts will do, but let’s identify some of the straws in the wind, with particular focus on how the Federalist Society judicial types might react to the coming legal challenges.

 Four Straws in the Wind

(1) As I noted in an earlier post, predictions that Trump will “run out the clock” do not fully take into account that courts have wide discretion over the pace of any particular lawsuit. As the Washington Post editorial notes, a district judge has just availed himself of that power to fast track Trump’s effort to block his own accounting firm from turning over financial records to the House Oversight Committee.

(2) You will remember how Sherlock taught us to listen for the sound of dogs that did not bark in the night. Well, here’s an example of a non-barking dog. Remember that statement signed by hundreds of former federal prosecutors, opining that they would definitely have charged obstruction based on the facts in the Mueller report?

Well, who from the Federalist Society contingent has stepped up to say they were wrong? Pretty much, nobody.

(3) Don McGahn, former White House counsel and Mr. Federalist Society court-packer extraordinaire, hasn’t exactly gone out of his way to defend Trump.

If, by chance, you are a newly appointed Federalist Society judge, and if you plan to decide cases based on gratitude instead of on the facts and the law—and perish the thought that any judge might hold such an attitude, but I’m just sayin’—then you have a much better reason to be grateful to McGahn than to Trump.

(4) An active contingent within the Federalist Society is urging the courts to do justice and to protect the Constitution. Check ‘em out at checks-and-balances.org.

And there is more at stake than mere constitutional principle. One reason why rightwing judges might want to preserve checks and balances is the fact that the next president may be a Democrat.

So I, for one, will be cautiously optimistic as I savor the sour smell of the flop sweat.

 

Trump and the Absolute Constitutional Right to Perform Human Sacrifice

Aztecs

Today has been a day of hand wringing over the Trump legal team’s claim of absolute presidential right to open and close investigations, and to pardon anyone he chooses, including himself, for any reason.

I would like to put this discussion in context. So let me begin by telling you a story.

John Doe comes to realize that he is the reincarnation of a high priest of Quetalcoatl, and that it is his destiny and his duty to assume the office of high priest himself. Accordingly, Mr. Doe constructs a shrine to Quetzalcoatl in his spare bedroom, and begins to lure people into his home, find some means to render them immobile, drag them into the bedroom/shrine, cut out their hearts, and offer sacrifice to the deity.

When Mr. Doe is apprehended, his counsel defends on the basis of the free religious expression clause of the First Amendment.

With this hypothetical in mind, let us pose a few questions.

Is the worship of Quetzalcoatl a religion? Yes, it is, or at least it was.

Is it (was it) incumbent on Quetzalcoatl’s worshipers to perform human sacrifice from time to time? Yes.

Is Mr. Doe a true believer in Quetzalcoatl and his religion? Who the hell knows, but one must assume an affirmative answer.

So when Mr. Doe killed all those people, was he exercising his religion? Yes, he was.

What does the Constitution say on the subject? It says, and I quote, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Is there an exception in the words of the Constitution for religious expression that involves human sacrifice? No, there is not.

Has the Supreme Court ever ruled that the First Amendment does not permit human sacrifice as a form of religious expression? No it has not. There is a case permitting chicken sacrifice as a religious ritual. But killing chickens for non-religious reasons is lawful, so it was not a challenge for the Supreme Court to reason that killing them for religious purposes must also be kosher.

Well, then, if the literal language of the Constitution affords an unfettered right to express oneself religiously, and if the Supreme Court has never dealt explicitly with an implied human sacrifice exception, isn’t it at least possible that the Supreme Court might find that Mr. Doe has a good defense to the charges against him? No, it is not. You would have to be a bloody idiot to think so.

But if the asserted legal defense is so ridiculous, then why did Mr. Doe’s lawyers assert it? BECAUSE THE FACTS WERE SO BAD THAT A REALLY RIDICULOUS ARGUMENT WAS THE ONLY ARGUMENT THEY HAD.

How does all this relate to Trump’s legal position? Trump’s position that he has the absolute right to pardon anyone for any reason implies that he has the power to announce in advance that he will pardon people who commit crimes of which he approves. In practice, this would imply an absolute ability to rewrite the criminal code to his liking, without a by-your-leave from anyone else.

For example, pictured below is Louis XIV (“L’etat c’est moi”) revoking the Edict of Nantes in 1685—after which French Protestants became outlaws, liable to being killed with impunity.

Trump is asserting that, as a matter of constitutional law, L’etat c’est Trump.

Should we be fearful because Trump has asserted such a ridiculous legal position? Probably, but at the same time we should feel a sense of relief. That’s because when you adversary embraces a position that is ludicrous on its face, it’s a sign of weakness and desperation.

If Trump’s legal position is ludicrous on its face, then why did his lawyers take that position? BECAUSE THE FACTS WERE SO BAD THAT A REALLY RIDICULOUS ARGUMENT WAS THE ONLY ARGUMENT THEY HAD.

Louis XIV, L'Etat C'Est Moi

The Government’s Legal Position: Ineptitude of Sinister Design?

Several decades ago Alan Dershwitz tried in vain to teach Aardvark about criminal law. Watching him on TV so many years later, I am glad, I suppose, that his self-confidence and sense of certainty have not diminished with age. Of some it may be said, “Often in error but never in doubt.” Surely the latter part of that sentence, at least, applies with full force to the good professor.

I have posted before on the difficulty of reverse engineering the government legal team’s legal strategy in the immigration case. Some readers may feel I obsess, but in fact this is damned important stuff.

Dershowitz contends that (1) the Trump executive order as originally written was constitutional (under the lenient and deferential “rational basis” test) and that (2) when Trump’s lawyers eschewed the “rational basis” test for review, and opted instead to argue that the order is unreviewable by the courts, they exhibited incompetence.

To leap from the sublime to the ridiculous, Joe Scarborough has said much the same thing. He may say the say the same thing tomorrow morning, if he remembers what he said last week.

I, myself, have identified legal incompetence by the defense team as one plausible basis to explain their behavior.

But, writing on Sunday evening, February 12, I now believe that incompetence is not the best explanation. I believe the best explanation for the Trump team’s anomalous legal strategy is that Bannon and Miller are attempting to create a constitutional crisis.

I think they want to put Trump in a place where he thinks his manhood compels him to order those he commands to disobey a court order grounded in fundamental constitutional law.

Does Trump fully grasp what Bannon and Miller are up to?

Does he approve?

Will he step back from the precipice?

We shall see.

Que será será.