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Snippets

The nurse watched me walk the fifteen steps from my bed to the bathroom. My first few were shaky, but they got better. I was superb getting back to the bed. I said, “So I don’t need you to go to the bathroom.” She responded, “But I would prefer that you call me.” I said, “Do you know how many women have said that to me?”

I have many identities. One of them is as a catless parent.

My Amish amigo Amos at the greenmarket works as part of a construction crew with other people from his church. I asked if there was music while they hammered and sawed. He said, as I knew, they had no radio. The only music came when one of them sang. In reply to my question, he said the songs were always religious, but Amos said that he knew a lot of country songs. He hears them when is driven to the market or the construction site by an “English” driver. The drivers can play the radio and apparently country music predominates. I said that an Amish can’t sing country songs since they are all about how I got drunk last night and my woman left me. Amos smiled. His sister Sadie laughed.

He says that his crowd numbers were huge, larger not only than hers, but larger than those of MLK, Jr. An obsession over size, size, size. Soon I expect him to whip it out of his pants and proclaim, “It is larger than hers.”

“When he lies, he speaks according to his own nature, for he is a liar and the father of lies.” John 8:44.

Was it the Paris Olympic or the Paris Olympics?

Why is it called water polo. It does not have to be played right-handed like polo. It does not use anything like mallets. Unlike polo, it has a goalie. Unlike polo, it has something like a penalty box. Would water soccer or water hockey have been a better name?

My life would not have been unfulfilled if I had never had pimiento cheese. [The spouse disagrees.]

According to Chris van Tulleken in Ultra-Processed People: The Science Behind Food that Isn’t Food, near the end of World War II, “the average U-boat crewman lived for only sixty days from boarding the ship.”

Pennsylvania has a close Senate race. The incumbent has run ads stating that the challenger invested in a Chinese company that makes fentanyl, implying that this has affected the state’s fentanyl problem. As the factcheckers often say, the ad lacks context. The challenger did invest in the company, but that pharmaceutical corporation makes fentanyl legally. Perhaps part of its output gets diverted to the illegal market, but if so, the incumbent’s ad does not present any information to support such a claim. The challenger has responded by saying that he never invested in Chinese pharma making illegal fentanyl. True, but he then goes on to imply that the real cause of the fentanyl problem is the southern border. This, too, lacks context. He presents no information that major amounts of fentanyl get into this country via illegal border crossings instead of legal ones. It also ignores that death from synthetic opioids soared while Trump was president. There were 19,500 such deaths in 2016, the year before he became president. That increased to 28,659 in 2017, 31,525 in 2018, 36,603 in 2019, and 56,894 in 2020.

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First Sentences

“In my defense, it was not my intent to write this book.” Naomi Klein, Doppelganger: A Trip into the Mirror World.

“Before Mazer invented himself as Mazer, he was Samson Mazer, and before he was Samson Mazer, he was Samson Masur—a change of two letters that transformed him from a nice, ostensibly Jewish boy to a Professional Builder of Worlds—and for most of his youth, he was Sam, S.A.M. on the hall of fame of his grandfather’s Donkey Kong machine, but mostly Sam.” Gabrielle Zevin, Tomorrow and Tomorrow and Tomorrow.

“Millions of people have formulated the wish, often unexpressed, that the lessons learnt from the philosophy of Gamesmanship should be extended to include the simple problems of everyday life.” Stephen Potter, Lifemanship: Some Notes on Lifemanship with a Summary of Recent Research in Gamesmanship.

“Some years ago, there was a boomlet of books about how the Greeks or the Jews or the Scots ‘saved’ or ‘invented’ the world.” Fareed Zakaria, Age of Revolutions: Progress and Backlash from 1600 to the Present.

“My name is Serena Frome (rhymes with plume) and almost forty years ago I was sent on a secret mission for the British Security Service.” Ian McEwan, Sweet Tooth.

“It was the start of a very important year—1776—and James Cook had become a very important figure, a celebrity, a champion, a hero.” Hampton Sides, The Wide Wide Sea: Imperial Ambition, First Contact and the Fateful Final Voyage of Captain Cook.

“On our wedding day I was forty-six, she was eighteen.” George Saunders, Lincoln in the Bardo.

“The first weekend of my 80 per cent [ultra-processed food] diet was one of those freakish autumn days when summer briefly returns.” Chris v. Tulleken, Ultra-Processed People: The Science Behind Food that Isn’t Food.

“There were children, and then there were the children of Indians, because the merciless savage inhabitants of these American lands did not make children but nits, and nits make lice, or so it was said by the man who meant to make a massacre feel like killing bugs at Sand Creek, when 700 drunken men came at dawn with cannons, and then again four years later almost to the day the same way at the Washita River, where afterward, seven hundred Indian horses were rounded up and shot in the head.” Tommy Orange, Wandering Stars

“The reedy and excitable twenty-six-year-old recent Harvard Graduate, full of anticipation, was motoring out to an open field in Potsdam, Germany, to attend a Nazi youth rally.” Rachel Maddow, Prequel: An American Fight Against Fascism.

“Some years ago there was in the city of York a society of magicians.” Susanna Clarke, Jonathan Strange & Mr Norrell.

“When writing about the deep ocean, the first question that arises is: What is it? At what point does the ocean become the deep ocean?” Susan Casey, The Underworld: Journeys to the Depths of the Ocean.

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It’s No State’s Secret: Lessons for the Federal Government

Comments and decisions are often made about what is essential, valuable, or desirable for the functioning of our national government without reference to important laboratories—our state governments. The states are structured much like the federal government with three branches of government, but there are often significant differences between state and federal operations. Those distinctions can shed light on the merits of federal structures.

For example, in this presidential season we can expect comments about the usefulness of the electoral college with assertions that it is essential to our freedoms. Such discussions should consider the states. None of them has adopted anything like an electoral college. Instead, all choose their governors by the direct vote of the electorate.

Another example: The United States Supreme Court bestowed presidents with immunity from criminal prosecutions. The decision rests on assertions that such immunity is necessary so that presidents can properly carry out their executive functions. The opinions do not mention that many governors throughout our history have been criminally prosecuted. The Court did not discuss how, if at all, such prosecutions influenced the effective functioning of state governments.

But what has most recently triggered my thinking about state governments is President Biden’s proposal to enact term limits for Supreme Court justices. According to news reports, Biden is proposing that each president will be able to appoint a justice to the Supreme Court every two years. After eighteen years of service, a justice would go on “senior” status and hear a case only if one of the nine active justices could not sit on it for some reason.

I can’t imagine that Biden’s proposal has a snowball’s chance of being enacted, but it has still produced an outcry. For example, an e-mail I recently received says, “These so-called court ‘reforms’ include ending life tenure for Supreme Court justices and a binding code of ethics for the justices that would be overseen by Congress. President Biden’s plan is a thinly veiled political scheme to intimidate and control the U.S. Supreme Court justices. This would threaten an independent judiciary and the rule of law.”

We could parse that passage but instead this is a time when we should look at state governments to calculate the dangers to an independent judiciary of an eighteen-year term. States, too, want their high court to be unbiased, but almost all states have rejected the federal model.

Rhode Island is the only state to grant life tenure to its Supreme Court justices. Two other jurisdictions allow service until the justice reaches seventy. In the other states, the justices have limited terms, which often are quite short compared to how long many of our federal justices now serve. New York has the longest term at fourteen years. Eleven states have ten-year terms. The rest have fewer than ten-year terms with fifteen states limiting justices to six years.

At least from what the states overwhelmingly indicate, life tenure for justices is not necessary for a good judiciary. Indeed, the clear rejection of that life term seems to indicate that the states have concluded that life tenure is bad for good government.

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Tommy Orange and Richard Henry Pratt

Tommy Orange places Richard Henry Pratt in the backstory to his novel Wandering Stars, a sequel to his award-winning There There about American Indians in Oakland, California.

The nonfictional Pratt had been a soldier who fought for the North in the Civil War and then served in the West pursuing, fighting, and negotiating with Indians. He was the primary force behind the famous Carlisle Indian school, whose philosophy influenced many other Indian schools established by the federal government. Pratt believed that Indians were deserving of a place in American society and that racial differences were not innate but the product of environmental factors. He believed that Indians could–and should–integrate into mainstream white society, but here was the catch: He thought this was possible only if the Indians abandoned their tribal communities and culture.

Pratt’s theories required a school away from the native lands. The Carlisle Barracks were an old twenty-seven-acre army installation. They had been damaged in the Civil War and then abandoned. Pratt talked the Army into allowing him to set up the school in the sixteen buildings that needed renovations. Almost immediately, Pratt constructed a seven-foot fence around the property as both a screen against sightseers—the townsfolk were curious about the young Indians—and to control the students.

The school separated both boy and girl students from their language. They were to speak only English. Uttering a native language was punished, and students from the same tribes were scattered among separate dormitories to break up tribal culture.

The students were also separated from their names, partly because the white teachers could not pronounce Indian names, but also to remove another aspect of their Indianness. As Sally Jenkins put it in The Real All Americans: The Team that Changed a Game, a People, a Nation (2007), when they had new, Americanized names, another “piece of their Indian selves had been taken away.”

The males were separated from their hair and that, too, separated them from their heritage. Jenkins reports that braids were a symbol of maturity for Lakotas, who only cut their hair when in deep mourning.

And they were separated from their traditional clothing, often colorful and distinctive. Instead, they all had to dress in drab uniforms, and the students became “an indistinguishable gray mass with no discernible outward differences.”

The very nature of the school itself, however, separated the students from a fundamental aspect of their heritage. Indian tribes had varied cultural differences, Jacqueline Fear-Segal reports in White Man’s Club: Schools, Race, and the Struggle of Indian Acculturation (2007), but in no Indian community was education a discrete endeavor conducted in a separate institution or by “teachers.” Education was woven into everyday patterns of living and took place informally in daily interactions.

The school took an undeniable personal toll on students: it erased their personal histories, sundered families, and obliterated their languages, faiths, and traditions. The goal was not to kill a people, but even so, the goal was to wipe out the Native Americans and replace them with something else.

 The school taught subjects whose successful completion was supposed to be equal to an eighth-grade education, but the students were also taught trades and agriculture. To further this training, the Carlisle school had an “outing” program where students were sent to work and board with local families. Students were thus to be introduced to American society and taught to be wage earners. As with much at the Carlisle Indian school, the outing program had mixed consequences. Many of the white families treated the students well, and lifelong bonds were often formed. Other families, however, merely saw a source of low-wage labor.

The influence of the Carlisle school began to wane in the early twentieth century for two reasons. First, sentiment against off-reservation schools began to build. Moreover, Richard Henry Pratt, who apparently found it difficult to act diplomatically with his superiors in Washington, was removed as head of the school in 1904. He was followed by administrators with little ability. The school was finally shuttered in August 1918 and converted to a hospital for wounded soldiers returning from World War I.

The school’s legacy is mixed. Many who passed through its gates praised it; many condemned it. Although the students were encouraged to remain in the East after leaving the school, the vast majority returned to the reservations, many of whom went back “to the blanket.” Jenkins suggests that as an educational school, Carlisle was not a success. Of the 8500 students who passed through Carlisle, only 741 received degrees. However, many others also went on to graduate from public school, which Pratt counted as successes. From its inception, Pratt thought that the school should only be temporary and wanted Indians integrated into white society and enrolled in public schools. Jenkins, however, also concludes that the Carlisle Indian Industrial School was successful as a training institution: “[T]he federal Indian agencies were full of Carlisle graduates working as teachers, clerks, interpreters, police, lawyers, blacksmiths, farmers, bakers, and tailors.”

Overall, however, the Indian school movement has increasingly been seen as a well-meant mistake. Jenkins says,  “Like so many other federal experiments regarding the Indians, what in 1879 was seen as a creative solution had come to seem wrongheaded. Humanitarians argued that removing children from their homes was cruel and counterproductive. Still others believed that Carlisle created false expectations and that it ill-equipped students for the grim realities of life back home. The school took an undeniable personal toll on students: it razed their personal histories, sundered families, and obliterated their languages, faiths, and traditions.”

The obliteration of language, clothing, hair styles, and other cultural hallmarks may have made sense when the goal was to integrate American Indians into the economy and culture of European-Americans, but the policies went beyond that goal. Not just Pratt, but European descendants more generally, seemed almost personally and morally offended by communal practices of indigenous peoples who believed that land could not be owned by individuals. For them, the land was shared by all. European-Americans, however, believed that freedom and a sound economy depended on private property. Thus, Troy Senik writes in A Man of Iron: The Turbulent Life and Improbable Presidency of Grover Cleveland that Cleveland did not seek to eliminate Indians. He believed in assimilation by which he meant education and speaking. But most important, Cleveland felt, the collective ownership of land by Indians must end.

This antipathy to shared or non-ownership of the land was not simply a product of America’s post-Civil War Gilded Age. Peter Stark in Gallop Toward the Sun: Tecumseh and William Henry Harrison’s Struggle for the Destiny of a Nation says that a chief goal of Harrison’s dealings with Indians on what was then the Illinois frontier was to end collective land ownership. When Pratt taught his students that they must give up communal lands, he was only teaching what government officials had been trying to accomplish for a century and were implementing across the continent. Shared lands on western reservations were broken up into parcels of private ownership. Jenkins notes that the U.S. government did not believe in sharing or communalism; it believed in private property. An Indian needed to be taught out West and at Carlisle “so that he will say ‘I’ instead of ‘We’ and ‘This is mine’ instead of ‘This is ours.’”

Why did the European-Americans have such antipathy to communalism? I don’t know, but I believe it is a thread that runs through much of American history and is not limited to relationships to American Indians. Perhaps someone can point me to good studies on the subject. But I do wonder if our world might not be better if we thought more about this earth in terms of “we” and “ours” instead of “I” and “mine.”

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Avoiding Jury Service

The college friend, having just gotten a jury questionnaire, asked whether a person over seventy can take an exemption from New York jury duty. He has a medical condition that keeps him close to a bathroom in the morning. The 45-minute subway ride would be scary. Otherwise, he would be happy to serve.

He had found previous jury service fascinating. He confesses that his Columbia University neighborhood is insular. At past jury duty he observed a much wider range of people than he usually encounters. This is not surprising since the Manhattan jury pool is deep. It is drawn from the entire borough—about 1.7 million people–which includes people other than academics, lawyers, investment bankers, and rich housewives. The friend told me in one jury selection the prospective jurors were told that the case would depend heavily on police testimony. The New Yorkers were asked about their ability to evaluate such testimony. The friend said that a Yorkville bartender said that he would never believe that a police officer would not tell the truth. Right after him a man who lived in Washington Heights, an area heavily populated by people with roots in the Dominican Republic—Manny Ramirez played high school baseball there and Alex Rodrguez was born there—said that he distrusted the police stemming from the murder of his closest friend.

Despite his past jury experience, my friend was pleased that he could take an exemption for being over seventy.

When I first started trying cases oh so many years ago, there were many other exemptions from jury service in New York. Most were occupation-based. The relevant statute said “a clergyman officiating as such; a practicing physician, surgeon, or surgeon dentist having patients requiring his regular daily professional attention; a licensed pharmacist, a person belonging to the army, navy, or marine corps; a captain, engineer, or other officer actually employed upon a vessel; an attorney regularly engaged in the practice of law; a duly licensed embalmer, a woman” could all claim an exemption from jury service.

Yes, being a woman was sufficient to get a jury service exemption. As the title suggests, no women were on the jury in Twelve Angry Men. It was set in New York at a time when women could be automatically exempted. When the spouse got a jury service notice back then, I was working as a public defender. I could not imagine that she would get selected for a jury. She took the exemption.

A few years later, however, the United States Supreme Court held that the systematic exclusion of women from jury pools violates the Constitution. New York revised its criteria for juries. Women were no longer exempt, and the job-based exemptions also disappeared. (The spouse has never served on a trial jury, but she was a grand juror for a month.)

My exemption as an attorney also ended, and I have been called for jury service several times. This process begins in a large room with a hundred or more people who have been called as potential jurors. The first time I was in a central jury room we were addressed by a clerk about jury duty, but that was later replaced by a slickly produced film about the importance of juries. I did not know whether to be amused or shocked by it. The film told us about the seminal trial of John Peter Zenger in 1735.

German-born Zenger, in a time when this land valued immigrants, published a New York City newspaper, at a time when this land valued newspapers. The Weekly Standard viciously, sometimes amusingly, attacked William Cosby, the greedy and arrogant British colonial governor of New York. Cosby, who appreciated neither the viciousness nor the humor, had Zenger charged with criminal libel, a crime not known today. Cosby handpicked the judges and had Zenger’s first attorneys disbarred. Andrew Hamilton, no relation to Alexander Hamilton, the Founding Father and later a rapper, came up from Philadelphia. The judges would not allow Hamilton to prove the truth of the supposedly libelous statements. Truth, they held, was not a defense. The only issue was whether Zenger had published the statements, which was admitted. Instead, Hamilton turned to the jury and appealed to them directly. Jurors, he argued, you are of this locality, and you know the facts. You know what Zenger said was true. He should not be punished for speaking the truth. The jury, after a few minutes of deliberation, acquitted John Peter.

In our history’s lore, the Zenger trial shows that juries can provide a bulwark against an executive’s dangerous use of criminal charges and also as a bulwark against dangerously compliant judges. The jurors formed that wall in Zenger’s case by ignoring the judicial interpretation of the law, what some call jury nullification.

The film shown to us potential jurors praised the Zenger jurors. The film then went on to the duties of today’s jury service. Buried in this information was the statement that jurors find “facts” but must apply the law the judge instructs them to follow. So much for jury nullification. The film’s producers had either forgotten about the ramifications of the Zenger trial or had never understood them, for no explanation was given as to why the law should be different today from those days of yore.

One of the times I was voir dired (voir dire, in legal lingo, is the process for the selection of trial jurors), I was specifically asked about whether I could accept the law as the judge gave it to me. I was not alone. I and thirty or forty others were called from the jury room and told to report to a specified courtroom. I was shocked when I entered. There was Kevin. I had played tennis with him several times at a nearby club. I knew his name and that he was a better tennis player than I. Although occasionally I might take a set, I generally lost by 6-3 and 6-4. He was not in tennis whites now. Instead, he was in a robe sitting up high. He was the judge for the trial.

When it was my turn to be questioned, he flattered me by saying that he knew that I was an author of a standard New York evidence book, but would I be able to accept his rulings? I assured him that I could. He asked if there was anything I would like to add. Earlier Kevin had introduced the attorneys who would try the case. Although I did not recognize him by sight, I was familiar with the name of one of the lawyers from my days as a public defender. I told the judge that I had no specific memory of working with him in those days, but Mr. Peck and I must have encountered each other. Peck who had had his head down taking notes, looked up, and squinted in my direction without a look of recognition. He asked for my name again, and when given, he gave the slightest nod to me. I was excused from that jury.

I was also excused from a federal criminal jury after I told the judge and attorneys that I had been a public defender and taught criminal law and criminal procedure., In a civil trial, the plaintiff was suing the landlord about a window that had fallen shut on her. In the voir dire we potential jurors were asked whether we had knowledge of personal injury law, had connections with medical personnel, or had been a landlord. I told him that I taught torts, the basis of personal injury law; that although the spouse was not a medical doctor, she had received her Ph.D. from a medical school; and that I had rented out two floors of my four-story house, so I had been a landlord. In a somewhat amazed tone the lawyer averred that often someone had something to say about one of the three areas, and once in a great while about two of them, but this was his first “trifecta.” I was excused from that jury.

I was never selected and was never upset by that. A subset of my fellow potential jurors would take it personally when they were not chosen. (Most, however, sighed with relief when they were excused.) I had never expected to be selected. I had picked juries as an attorney. I had written a book about the jury system. And I knew how important juries were to the Founders and to our present justice system. It would not have been right to avoid jury service, I thought, and I didn’t avoid it on purpose.

For me, however, confident that I would not be picked for a trial jury, it was a stress-free time. Instead, I could reflect on the astonishing diversity of Brooklyn’s potential jurors. These were people with many shades of color and many kinds of jobs and differing education levels and wealth. As the juries were assembled, it was easy to see what I already knew: Juries are our most representative institutions. They better mirror who we are as a community and a country than our legislatures, governors, presidents, or judges. The Founders knew the strength of juries, and it has made me a proud American to see the jury system in operation.

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Snippets

I mourned the death of Bob Newhart. I had enjoyed him in his eponymous sit-coms, his appearances on The Big Bang Theory, and his banter with Johnny Carson, but I most admired his innovative telephone calls where he presented a new kind of comedy. The routines were funny but, in an indefinable way, subversive. Perhaps as a result, I am the only person that I know of to have cited Bob Newhart in a law review article.

The Supreme Court was in the midst of a series of cases interpreting the right of confrontation in the Constitution’s Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The meaning is not clear from this text and almost nothing in the constitutional debates illuminates them.

Courts and legal academics, including me, weighed in with many people saying that the right could be traced back to the 1603 trial of the cloak-spreader, Sir Walter Raleigh. Raleigh was convicted of treason after the prosecution used affidavits in his trial instead of witnesses who Raleigh could cross-examine. Without going through the legal disputes, I had doubts about the overly confident assertions of judges and academics, such as this one by Justice Scalia: “Raleigh’s infamous 17th-century treason trial remains the canonical example of a Confrontation Clause violation.” And thus, my Newhart reference. After criticizing the views of others, I wrote, “At this point, however, the vision becomes obscured, perhaps by the smoke from the tobacco that the sometime-historian Bob Newhart suggests Raleigh brought back to Europe.” (You can, and should, look up Newhart’s version of the Raleigh telephone call. When you are through with that, look up the Abe Lincoln call.)

R.I.P. Bob Newhart

My Newhart citation was in an article titled, Confrontation Clause Curiosities: When Logic and Proportion Have Fallen Sloppy Dead. Extra points if you get that reference.

Few may know about the constitutional right of confrontation, but almost everyone has heard about the Second Amendment, although discussion of it has been largely absent in the wake of Trump’s shooting. When he carried the gun to the rooftop in the attempted assassination of Trump, wasn’t the young man just exercising his Second Amendment rights? In the shooting’s aftermath, I have not heard the NRA mantra: “The only thing that stops a bad guy with a gun, is a good guy with a gun.” However, I believe that to go to Trump’s rally, you had to surrender your firearms. Don’t the Second Amendment fanatics believe that they should be able to carry guns to a political event? Don’t they believe that they are good people who would have stopped the bad guy? Why should there be a Second Amendment right to carry a gun in Times Square but not to a presidential rally?

“The only freedom which deserves the name is that of pursuing our own good, in our own way, so as we do not attempt to deprive others of theirs, or impede their efforts to obtain it.” John Stuart Mill.

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Snippets . . . PTD Edition

My experience last year made me think about death in a different way. I briefly blacked out and collapsed in a shopping center hallway where nice people helped me. When I looked back at the episode as a near-death experience, I thought it would be embarrassing to have my obit say, “He collapsed and died in the Atlantic Street mall outside a Marshall’s.” I did not know where I wanted to die, but it wasn’t there. Since then the spouse and I have looked at many continuing care retirement communities, or as I call each of them, a Place To Die. Both the spouse and I have posted about these travels on this blog, but our search has now ended. We have signed a contract and put a down payment to enter a CCRC in suburban New York. I have a PTD. Of course, we must now downsize and sell our Brooklyn house where we have lived for 45 years. But, I am confident that the move will come by the end of the year. I hope that it gives some interesting, perhaps amusing, blog fare.

“Tragedy is when I cut my finger. Comedy is when you fall into an open sewer and die.” Mel Brooks.

“Only the young die good.” Ethel Watts Mumford.

“Dying’s not so bad. At least I won’t have to answer the telephone.” Rita Mae Brown.

“The type of man who will end up dying in his own arms.” Mamie van Doren on Warren Beatty.

“My grandmother was a very tough woman. She buried three husbands. Two of them were just napping.” Rita Rudner.

“God was very good to the world. He took her from us.” Bette Davis on Miriam Hopkins.

“If a man watches three football games in a row, he should be declared legally dead.” Erma Bombeck.

“It is fine to speak well of the dead, but what shall we do with those who are dead and don’t know it?” Unknown.

“Some cause happiness wherever they go; others whenever they go.” Anonymous.

“I didn’t attend the funeral, but I sent a nice letter saying that I approved of it.” Mark Twain.

I told the spouse that I wanted to be cremated. She said, “When?”

“In the words of a Fula proverb: ‘Until a man is dead, he is not yet done being created.’” David Diop, At Night All Blood is Black.

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When the President Does It. . . He’s Immune (Concluded)

 Is Presidential Immunity Necessary?

The Court said that a president must have immunity for official acts because prosecutions can intrude on the authority and functions of the executive branch.  Roberts writes:

“The hesitation to execute the duties of his office fearlessly and fairly that might happen when a President is making decisions under a pall of potential prosecution raises unique risks to the effective functioning of government. A President inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office. And if a former President’s official acts are routinely subjected to scrutiny in criminal prosecutions, the independence of the Executive Branch may be significantly undermined.”

This rationale is remarkable. Up until this decision, it had been widely assumed that a president could be prosecuted after leaving office. Every president until now, if he thought about it at all, would have assumed that he did not have immunity when an ex-president. Meanwhile, the presidency has been extensively, even exhaustively, studied. Untold volumes of presidential papers have been compiled. Uncounted books and papers about the lives of presidents and their decision making have been published. (More than 16,000 publications about Lincoln alone.) If there have been any instances, much less numerous ones, where a president made a decision based on the possibility of a future prosecution, the Court does not tell us about it. On the other hand, if the threat of prosecution has had a powerful effect on presidents, there should be many historical examples of distorted decision making that resulted.

The Court also voiced its concerns about “routine” prosecutions of former presidents for official acts. Roberts said that the dissents raise fears about “extreme hypotheticals where the president feels empowered to violate federal criminal law. The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive president free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next. . . . Without immunity such types of prosecutions of ex-Presidents could quickly become routine.”

Of course, this is mere speculation without a historical basis. We have an n of one for such prosecutions. The Court seems to have swallowed the Kool Aid of Trump that his prosecution is fueled by partisanship, and if partisanship controls, we can expect more prosecutions. In any event, the supposed fear that political opponents will prosecute former presidents in the future for partisan reasons has neither history nor logic behind it. As noted above, these are the first prosecutions of a former president in our more than two century existence, even though during that time we have had many fierce, partisan alignments. The immunity advocates may say that the times are now different, but if so, they don’t want to recognize that the times may be different because Trump’s actions have been unprecedented.

There are natural, institutional restraints on the use of criminal charges for normal presidential decisions against former presidents. Most of what a president does—appoint a Secretary of State, prepare a budget, draft a new healthcare bill—is not even arguably criminal and will not lead to any criminal prosecution. Perhaps, however, ordering a drone strike that kills an American citizen claimed to be a terrorist leader in the Mideast or declaring an “emergency” to divert moneys to build a border wall that Congress has refused to fund might be at least arguably criminal. Even if so, successor administrations are highly unlikely to seek indictments for such actions no matter what the partisan climate. Criminal charges against a former president could mean that his successor has restricted his own freedom of action. Someday he may want to do something similar to what a predecessor did, but if he labeled it criminal through a prosecution, he wouldn’t be able to. Sitting presidents almost never want to limit their power. Indicting and trying predecessors for truly presidential acts has not happened and will not happen. The scare tactics about routine prosecutions, not supported by history or logic, are straw dogs.

Can Immunized Official Acts Be Used As Evidence?

The Supreme Court went beyond the creation of immunity for Trump. Roberts stated that the Government (i.e., the DOJ) had inappropriately proposed the use of immunized official acts as evidence in an allowed trial. Here’s an example of what that might mean: Assume that it is determined that Trump’s role in seeking to assemble fake electors is a private action, and he can be prosecuted. He might argue that he was only seeking to ensure election integrity, and anything that might look criminal arose out of good intentions and was not a crime. That contention would be undermined by evidence that he sought to have the Justice Department launch sham investigations into the election. Similar kinds of evidence seeking to show a corrupt intention are used regularly in trials. But the Supreme Court said it can’t be used in the prosecution of an ex-president, stating that using official acts to help prove issues in a prosecution for a private act “threatens to eviscerate the immunity we have recognized.”

They held further that the use of such evidence might distort presidential decision making. This assumption was unsupported. Moreover, it’s highly unlikely. The Court apparently believes that a president, while doing an official act for which he will get immunity, might consider that his action might be used in evidence in a criminal prosecution for a non-immunized act that he is not then doing and that he might never do. Follow that? Neither do I. Who thinks along such convoluted lines? Meanwhile, it is hard to see how presidential choices about corporate taxes, Chinese tariffs, the Affordable Care Act, and the like would ever have evidentiary value in a prosecution that may or may not happen for a private act. Come to think of it, would it be a bad thing if a president thought twice about seeking sham investigations into voter fraud?

The Court also said the evidentiary restriction is necessary because otherwise there will be “a unique risk that the jurors’ deliberations will be prejudiced by their views of the policies and the performance of the president.” Furthermore, “the ordinary trial tools may protect ordinary criminal defendants, but the immunity seeks to protect not the president himself but the institution of the presidency.” Not surprisingly, there are no citations in support of these propositions. Moreover, they ignore an obvious logical flaw. The Court can hide presidential behavior by not allowing evidence of it, but it can’t hide that a previous president is being tried. If the jurors are prejudiced by their views of his polices and performance, they will be prejudiced with or without the evidentiary restriction. Of course, normally this is handled during jury selection and by normal evidence rules as well as judicial admonitions about what evidence to consider and how it is to be used. Unless the Court is going to create more unknown trial procedures, the fact that an ex-president is on trial can’t be kept from the jury. If opinions about an ex-president are prejudicial, the prejudice will be there with or without the evidentiary restriction. However, that restriction will deny the jury important evidence making such a trial less fair.

Did It Matter that Justices Alito and Thomas Did Not Recuse Themselves?

Cries went out that Justices Thomas and Alito should recuse themselves because their wives’ activities produced conflicts of interest. The two, of course, still joined the majority. At first glance, this did not seem to matter since the Court split six to three along ideological and political lines. If Justices Thomas and Alito had not sat, the split would have been four to three with the same result. But that overlooks some important points.

Justice Amy Coney Barrett wrote a concurring opinion that largely agreed with Roberts’s opinion. However, she withheld complete agreement by writing that the attempt to organize alternative electors was a private act, and she saw no plausible argument for barring a prosecution for this conduct. If Thomas and Alito had not sat, there would have been only three votes for remanding for a trial court determination of whether this conduct received immunity. Instead, the Court would have held that that the prosecution could proceed on these grounds.

In addition, she also concluded that the evidentiary restriction created by the Court was wrong. The three dissenting judges also came to the conclusion. The four would have been the majority on this issue if Thomas and Alito had been recused. In short, their failure to recuse mattered. 

Who Benefits Most from the Decision?

Trump v. United States (seldom has there been a better name for a Supreme Court case—Trump against the United States) was a major victory for the former president. Because of these rulings and remands back to the lower court, no trial will be held for quite some time, if ever.  The normal rule is that appeals are held only after all the trial court proceedings have been completed. The Court held, however, that interlocutory appeals can be taken on the immunity issues. That means whenever the trial court decides about immunity — which will take time to allow for briefing, arguments, consideration, and decision making — an appeal on these issues can be taken immediately, and the trial held in abeyance. Then there will be more briefing, arguments, consideration, and decision making in the Court of Appeals. And then there will be an attempt to take the appeal to the Supreme Court. Don’t hold your breath waiting for a trial’s outcome. If Trump is tried, it may not be for years, and by then the case will be in a bastardized form and far from what the prosecution has alleged.

According to some the decision is also a major victory for the institution of the president, but it is also a limitation on the presidency. The Court has taken away part of what it says is a quintessential executive power—the authority to investigate and prosecute crimes. In giving immunity to a former president, the Court has limited the power of the sitting president to investigate and prosecute. The Court, without any apparent consideration of it, has removed from all presidents the quintessential power of determining whether the prosecution of a former president is in the national interest.

The Court, by leaving many issues open with little or clouded guidance, has arrogated power to the judiciary. What is a “core” official act? Is the immunity for a non-core act absolute or presumptive? If it is presumptive, how, if at all, can the presumption be overcome? What is the line between a private act by a president and an official one? We have no evidence that past presidents ever made decisions concerned about a future prosecution, but after this decision a president may be emboldened to push the boundary on criminal actions because of the newly created immunity. However, because of the many open questions, a president may not be sure about his freedom from prosecution. By Roberts’s analysis they still can’t in all circumstances “boldly and fearlessly” carry out their duties. They must wait until the courts decide these open issues. The decision gave the president extraordinary authority; it also gave the courts potent powers.

Of course, the immunity created for Trump should apply to other presidents. Would you advise Biden to use this new opportunity? For example, Biden could order the FBI or intelligence agencies to surveil Trump and all his advisers or to disrupt communications among them. Or perhaps surveil Justice Thomas to see if, despite disclaimers, he and his wife do talk politics. Biden would be giving such orders to members of the executive branch, and his actions would now have absolute immunity.

Conclusion

Almost fifty years ago, David Frost asked then ex-President Nixon whether the president could do something illegal in certain situations such as against antiwar groups and others if he decides “it’s in the best interests of the country or something.” Nixon famously replied, “Well, when the president does it, that means that it is not illegal.” Nixon was mocked for his answer. The present Supreme Court did not say that all official presidential acts were automatically legal; they said only(?) that the president had immunity for them. But is something criminal if the perpetrator can never by prosecuted for it? The mockery of Nixon should end. And of course, there is now the question of whether Nixon should have had immunity for Watergate. Nixon’s role was to talk with his advisers in the executive branch that set off the chain of events that led to Watergate. Would those conversations now have to be considered core presidential actions for which he had absolute immunity?

Welcome to the new world where, according to the Supreme Court, presidents for the first time, can make decisions boldly and fearlessly because they have immunity from criminal prosecution. Meanwhile, many of us see a new world where presidents are above the law and can commit crimes without accountability.

Posted on by rjonakait

When the President Does It . . . He’s Immune

The Basic Finding of the Court

The Supreme Court in Trump v. United States held that presidents — present, past, and future — have immunity from criminal prosecution for their official actions.

There are many unsettling aspects to this decision.

 The starting point should be the Constitution. Read the Constitution. Read it again. No such immunity is in the Constitution’s text. Moreover, in our 230-year history, the Supreme Court has never held that such immunity existed. That is, until July 2024, when the Court discovered such immunity. Apparently, the Founders’ mistake has been corrected centuries later.

The Court held further that there is absolute immunity for “core” presidential actions, those where the Constitution gives “conclusive and preclusive” authority to the president. This immediately raises the question of what constitutes a “core” action. While indicating their list was not exhaustive, the Court asserted that the power to pardon, remove executive branch officials, and recognize foreign countries fell within the definition of core presidential actions.

This list is noteworthy for several reasons. First, the powers to remove officials and recognize foreign countries are not “core” enough to have been enumerated in the Constitution. They are not mentioned in the text. Instead, the president has conclusive and preclusive authority in these areas only because the Supreme Court, well after the Constitution was adopted, said so.

Presidential authority to pardon is in the Constitution but think about what absolute immunity means here. No matter how corrupt the motive for the act, an ex-president cannot be prosecuted for granting a pardon. Even if it could be proved that the president solicited $1 million for it, he is immune. [I am using “he” or “his” throughout for ease of reading.] The bribery laws now apply to everyone in the U.S. except one person.

The Court did say that immunity could extend only to “official” actions. The opinion did not give an authoritative test for separating the official from the unofficial, but it indicated that the scope of official acts is broad. Official acts, they write, are all actions within the “outer perimeter” of a president’s powers and duties. Only acts “manifestly or palpably” beyond his authority are unofficial or private. As you will see below, it is left to others to determine what the definition of “’manifestly or palpably’ beyond his authority” actually means.

When us ordinary folk think about core presidential powers, we probably think about the president as commander in chief, his role in foreign affairs, and his setting legislative priorities in taxation, healthcare, immigration, civil rights, and myriad other areas. Trump, like every president before him, was not prosecuted for any of these “core” areas. Moreover, he was not prosecuted for the core areas enumerated by the Court. He was not prosecuted for pardoning someone. He was not prosecuted for removing someone from the executive branch nor for recognizing a foreign country. Instead, he was prosecuted for trying to prevent the results of a valid election by seeking sham Justice Department investigations, pressuring a vice president to ignore his duties, urging state officials to “find” votes, assembling “electors” who have not been elected, and urging a throng to go to the Capitol where electoral votes were to be accepted. Would our founders have seen these as official presidential acts? The Court shoehorns them into official acts, but they were primarily, if not entirely, the acts of a candidate trying to retain his office. These unprecedented political acts, not the normal duties of a president, brought the unprecedented prosecution.

Can a President Commit a Criminal “Official” Action?

The president is never authorized by the Constitution or Congress to take a criminal action. You might think, then, that he cannot be acting officially if he commits a criminal act. Not according to this decision. So, for example, the Court stated that the investigation and prosecution of crimes is a quintessentially executive function. In 2020 Trump allegedly urged the Justice Department to act on bogus claims of election fraud. The Supreme Court concluded that even if Trump had sought sham investigations, even if his behavior was criminal –he is absolutely immune for this conduct because it falls within his executive function. At least when it comes to the president, even criminal acts can be official ones. This means that if Trump had ordered the arrest of duly elected electors so that they could not cast their votes, he would have had had immunity from criminal prosecution.

Is Urging Someone within the Executive Branch to Break the Law an Official Act?

The Court’s expansive notion of official actions is illuminated by its discussion of Trump’s alleged pressuring of Vice President Pence not to certify the valid electoral college results. Chief Justice Roberts writes, presumably with a straight face, that “our constitutional system anticipates that the President and the Vice President will remain in close contact regarding their official duties….” This is asserted without any citation. This is not surprising since there is nothing to cite. The Constitution nowhere suggests that this is a required or even a desirable facet of the relationship between the two. It is also historically inaccurate; there has often been little-to-almost-no contact  between a president and a vice president. Sometimes there has been outright hostility between them. Roberts continues that it is important for the president to talk about official matters with the Veep to ensure continuity in the executive branch and to advance the presidential agenda. It may be nice, or even desirable, for this to happen, but it is not a requirement in the Constitution.

The Court then concludes that whenever the president and the vice president discuss their official responsibilities, they engage in official conduct. Au contraire. Trump was not discussing any presidential duties when pressuring Pence. The Court admits that the president had no official role in the January 6 certification; it was the sole duty of the vice president. Even so, the Court held that Trump’s pressure on the vice president involved official presidential conduct. To repeat, the Court held that it was official conduct even though the president had no official role in the certification. An official act can, apparently, occur even when there is no official role or duty.

Okay. Now Things Get Complicated

Even if it had been an official act, Trump does not necessarily mean that he can’t be prosecuted for his attempt to get Pence to do something illegal. The Supreme Court stated that if a president commits a criminal act that is not within his core duties but is an official act, he may have absolute immunity or presumptive immunity. With presumptive immunity one assumes he has immunity until someone (a court) decides he doesn’t. This Court, however, chose not to determine the issue of immunity in this instance because it had no guidance from previous cases. No surprise there; there has only been one case raising the issue—this one. (N.B. There has been only one such case since the country began — this one.)

Nevertheless, the Court gave this muddy guidance: In its opinion the Court said that if an action has presumptive immunity, the prosecution must overcome the presumption by showing that its prosecution has no danger of intruding on the authority and functioning of the executive branch. As for Trump’s pressure on Pence, the Court averred that because the VP acts as President of Senate when certifying the electoral vote, this is not an executive branch function. The president plays no role in it, and thus, the Court said, prosecution based on this particular conduct may not pose a danger of intruding into the authority of executive branch. Then, without explaining how, maybe it will. With this mysterious pronouncement, the Court sent the issue back to the lower court to figure it out.

What is the Lower Court Supposed to Do?

The Court sent other matters back to the trial court that had been hearing the original case. In doing so, they are asking the lower court to determine immunity (or not) on several issues. Again, the Court offered only murky guidance. So, for example, Roberts stated that Trump had no official role in the selection of electors. On the other hand, the president has a role in enforcing federal election laws. Was the attempt to round up fake electors an official act, and if so, was presumptive immunity overcome? Take a whack at that one, trial court.

And this one. The Court said that a president has extraordinary power to speak to the public, but at times he may be speaking in an unofficial capacity as a party leader or a candidate. Were Trump’s actions on January 6 official acts, and if so, was presumptive immunity overcome? Chew on that, trial court.

Let me suggest a test that the trial courts might use: If someone outside the government could have done the same thing that an ex-president seeking immunity did, then those actions were not presidential acts. So, for example, a candidate who is not an incumbent might pressure a state Secretary of State to “find” votes or seek to assemble false electors with the implicit or explicit message that when he becomes president, he will remember who his friends and supporters were. A candidate who is not an incumbent could rile up a throng of his supporters in a public park urging them to prevent the certification of electors. If the candidate could be prosecuted for these actions, an ex-president should not be immune for them.

(Concluded July13)

Posted on by rjonakait

Honor the Founders, But . . .

On the Fourth of July we honor the founding of our country. The country has always been imperfect, but it is worth honoring.

On the Fourth we honor our Founders, who, being human, were imperfect, but they are worth honoring.

On the Fourth we should also honor all the many people who brought about the Spirt if ’76. When the imperfections of revered people are pointed out, we often say that they were a product of their times. However, the good also comes from the age in which they lived. Jefferson could not have drafted the Declaration of Independence in 1736 because the times were not ready for it. And he would not have drafted it in 1816 because it would have already been written by someone else. As Pauline Maier in American Scripture: Making the Declaration of Independence reports, many localities had drafted Declarations of Independence in the months before July 4, 1776. If Jefferson had not lived, a national Declaration of Independence, perhaps with not the same eloquence, would still have been adopted. On the Fourth, we should honor more than just the few Founders, but all the Americans who produced the spirit of the times that demanded independence.

On the Fourth of July we honor our warriors, and we should honor those who have performed military service, especially now when an increasingly smaller portion of our population serves to protect the rest of us. Warriors have fought to make us freer and safer.

Those who defend our country are patriots, but so are those who seek to make America better, who strive for an even stronger and freer country today, tomorrow, and for future generations. Improvement, however, requires understanding America’s strengths and America’s weaknesses. Critics of this country are also patriots and should be honored. This includes those who have questioned our wars. Not every one of our armed conflicts has made us freer and safer. The prevention of the needless death or maiming of a soldier is at least as patriotic as honoring the fallen and disabled.

Have hot dogs and hamburgers, ice cream and watermelon. Read the Declaration. Honor Hancock, Jefferson, Franklin and other Founders. But honor many others also.