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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)

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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.

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First Sentences

“At the turn of the twentieth century, before Zionist colonization had much appreciable effect on Palestine, new ideas were spreading, modern education and literacy had begun to expand, and the integration of the country’s economy into the global capitalist order was proceeding apace.” Rashid Khalidi, The Hundred Years’ War on Palestine: A History of Settler Colonialism and Resistance, 1917-2017.

“Had Ernst Simmel known he was to be the Axman’s second victim, he would no doubt have downed a few more drinks at The Blue Ship.” Hǻkan Nesser, Borkmann’s Point: An Inspector Van Veeteren Mystery.

“In the early morning hours of Wednesday, November 28, 1917, someone knocked on Khalil al-Sakakini’s front door and brought him great misfortune, indeed almost got him hanged.” Tom Segev, One Palestine Complete: Jews and Arabs Under the British Mandate (translated by Haim Watzman).

“We are the earth, the land.” Honorée Fanonne Jeffers, The Love Songs of W.E.B. Du Bois.

“It was July 29, 2019—the worst day of my life., though I didn’t know that quite yet.” Tim Alberta, The Kingdom, the Power, and the Glory: American Evangelicals in an Age of Extremism.

“Whenever I woke up, night or day, I’d shuffle through the bright marble foyer of my building and go up the block and around the corner where there was a bodega that never closed.” Ottessa Moshfegh, My Year of Rest and Relaxation.

“In 1848 Will and Ellen Craft, an enslaved couple in Georgia, embarked upon a five-thousand-mile journey of self-emancipation across the world.” Ilyon Woo, Master Slave Husband Wife.

“My journal is a private affair, but as I cannot know the time of my coming death, and since I am not disposed, however unfortunately, to the serious consideration of self-termination, I am afraid that others will see these pages.” Percival Everett, Erasure.

“Mark Twain counted pockets among the most useful of inventions.” Hannah Carlson, Pockets: An Intimate History of How We Keep Things Close.

“They were still traveling, into the dark.” Denise Mina, Field of Blood.

“It was a November afternoon in Queens and Jie Zou was looking for a parking spot.” Henry Grabar, Paved Paradise: How Parking Explains the World.

“From then on whenever he heard the song he thought of the death of Munson.” Colson Whitehead, Crook Manifesto.

“A little more than two hundred years ago, Europeans contemplated the Islamic countries of the Middle East from afar and imagined rare silks and spices, harems, and gold—yellow gold, not the underground sea of black gold that modern Westerners associate with the region.” Nina Burleigh, Mirage: Napoleon’s Scientists and the Unveiling of Egypt.

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Snippets

I placed The Love Songs of W.E.B. Du Bois by Honorée Fanonne Jeffers on the bar. A young man came up next to me to order a beer. He noticed the heft of the book and asked why I was reading it. I said that people I knew and others had recommended it. He asked if he could take a picture of the spine. I consented to the strange request. He looked closer at the novel and said that he did not know the book but had heard of the author. After the briefest debate with myself, I told him that W.E.B. Du Bois had not written it. “Oh,” he said.

She placed a book on the bar as she settled on the stool next to me. She started to read, and I asked what she was reading. She showed me the cover. It was Volume II of a title I did not recognize. She said that it was a Chinese classic. She told me from what dynasty, but I confessed I never knew one Chinese era from another. I let her try to read over the din of the bar’s Trivia Night. Ten minutes later she indicated that she wanted to show me something and held out her right arm. On the inside upper part was a beautiful tattoo of a beautiful woman. She then turned back to the book’s cover and pointed out a figure. “It’s her,” she said. I did not know how to respond. She then leaned closer and almost whispered, “It cost me $500.” I found this unsettlingly intimate. I left a bit later and politely, but not sincerely, said to her, “I hope I see you again.”

Our lunch companions had both been married before. When asked how they had met, the charming Cliff said that they had been neighbors in Scarsdale. He continued that after they married they moved to Greenwich. I said, “Ah, you were run out of Scarsdale.” With his winning smile, Cliff said, “Something like that.” And I thought a twofer. Two commandments broken in one relationship. But this could not have been because they both regularly attended an Episcopal church.

Joan at lunch said that she refused to eat with a Trump supporter. The spouse mentioned that the bubbly Pat at breakfast had told us for no particular reason that she loved Trump. Joan was shocked when she learned that, but we left shortly afterwards so we don’t know how that story continues.

We had lunch with Sam in a Connecticut suburb. He loved going to plays in New York City, taking the train in and catching matinees. He also was a museum goer, and we discussed recent plays and exhibits. He used the subways to get around the city although most of his suburban compatriots were afraid of those trains. He said that after lunch he was driving to a summer house that had been in his wife’s family for 96 years. The house was not hooked up for electricity but had solar power and a generator. Outhouses had been used for most of its history. He said that with his four kids he had been required to dig a new hole every month. Without traffic, he said that it took about an hour to get there. He got in the left lane, he continued, and drove 85 mph all the way. He said that a state trooper had told them that they no longer gave speeding tickets, so he was not concerned. His children, however, want him to take the train and give up driving. He is 97. He said he enjoyed life and wanted to live to 110.

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Lawn Bowling, and Then You Die

I gave up golf in high school. My father was a golfer, and he taught my mother to play. The two of them played two or three time a week. When I was small, I would walk with them and search the roughs for lost balls. It was always a thrill to find one. Even better than an Easter egg hunt. My father also taught me some golf fundamentals in our backyard with wiffle-like golf balls. I started to play with my parents. I suppose for a twelve-year-old I was okay, but I knew that if I were going to play the game, I was going to have to practice chips and pitches and putts and bunker play. I hated that stuff. I wanted to run and slide and get dirty and sweaty. Someone could hit me grounders for hours, and I enjoyed it, but not golf practice. I stopped playing.

I began to play golf again when I was 55 or 60, and that is my excuse as to why I am so bad at it. My summer community has 27 holes, but it also has ten tennis courts. When I first moved there, I played as much tennis as I could. This started when I was about 45, which is my excuse why I am bad at that game, too. But I also did academic work at the house in the summer place. I started to walk and play nine holes of golf at the end of a day that I had spent at a computer keyboard. I found it a good transition to the evening. After I hit the ball, I only thought about the next shot as I walked to my ball that was never all that far away. That cleared my head from my mental struggles during the day. I tried to remember what my father had taught me about golf, but I was not good. I only played by myself because I was embarrassed to let anyone see how bad I was.

I became more interested in taking golf slightly more seriously when I invited my high school friend, who is a good golfer, to play in the member-guest golf event at the summer place. I didn’t want to embarrass myself too much. We enjoyed the competition and the people we met. It became an annual tradition as long as neither of us had health problems that prevented us from competing. We never won the whole thing, but we won our flight several times. I was always pleased with the few holes where I helped us. On occasion I put a few good shots together to win a hole. So each year, I struggled with golf until the middle of the summer when the member-guest was held. After that I stopped caring about the game.

Now I play nine holes two or three times a week with Tony, who has become a close friend. We don’t compete. He is a terrific golfer, but our times together are only partly about golf. By our separate standards, we would like to play well, but we also have wide-ranging conversations—about books, streaming shows, concerts, good-looking females, history, sports, politics, spouses, children. I care about my time with Tony, but not really about golf. I would not seek out golf if I lived elsewhere.

I had assumed I would play tennis forever. I had seen old guys like I am now enjoying themselves on the courts, but increasingly I found myself not enjoying myself when I hit tennis balls. Various injuries had gotten me into bad tennis habits, and I could not get out of them. I could accept that I could not cover the court like I once did or hit as hard, but it was unpleasant that I felt I could not hit a forehand at all. I have not played in a while, and I am not sure I will again.

Having given up tennis, I thought of a saying someone told me when I moved to my summer community. First you play tennis. Then you play golf. Then you go on to lawn bowling. (The community has bowling greens, which I have seldom utilized.) Then you die. These days pickleball has to be fit into this timeline since the community now has a couple of courts. I vow that someday I will try silly-looking pickleball, although I have not yet done so. So, as I see it, I have some years left to try lawn bowling and pickleball. That should keep me around for a while. Yes, pickleball before I die.

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Snippets

White evangelicals have gained extraordinary political power, but, even though Tim Alberta is an experienced political writer, that is not the focus of his recent book, The Kingdom, the Power, and the Glory: American Evangelicals in an Age of Extremism. Alberta is an evangelical himself. In acknowledgements he writes about the Trinity and continues, “I have endeavored to honor God with this book. If anything in these pages fail to do so, I pray that brings it to nothing, and that He carries to completion the good He has begun. Thank you, Jesus. I love you.” Alberta’s focus is on how the evangelical search for political and secular power, of which he has too many examples to summarize, has distorted the church and Christianity he loves. He sees that Trump has coopted evangelicals, but he also maintains that the problems with the church have existed before and apart from the former president. Trump exposed “the selective morality and ethical inconsistency and rank hypocrisy that has for so long lurked in the subconscious of the movement. To be fair, this slow-motion reputational collapse predated Trump; he did not author the cultural insecurities of the Church.” Alberta’s goals are not political; they are religious: “Christians are called to help God’s family grow both quantitatively and qualitatively. This is the enduring purpose of the Church: to mold fallen mortals into citizens of a kingdom they have inherited, through the saving power of Jesus Christ, to the everlasting glory of God, so that they might go and make disciples of their own.” I don’t pretend to identify with or even understand Alberta’s goals. However, if you have an interest in modern religion or in our modern politics, The Kingdom, the Power, and the Glory: American Evangelicals in an Age of Extremism is worth a read.

Would you be happier if the Supreme Court treated its work as if it were a fulltime job and decided more cases? I ask because it is surprising to learn that even though its tasks can be done more efficiently than in most of our history, the Court now decides surprisingly few cases. For example, word processing makes writing and editing less cumbersome than in the days of pens or typewriters. Legal and other research has been computerized so Justices (or one of their clerks) can now easily find all the times “bump stock” has appeared in a legal opinion. Forty or fifty years ago finding that information would have been an onerous task. The Justices have more human assistance in their chambers now. Law clerks have assisted Justices since the first one was hired by Justice Horace Gray in 1882. However, for most of the twentieth century the Justices had only one clerk at a time. In the 1970s and 1980s that changed. Now the Justices have three or four clerks each. This, however, has not led to more Supreme Court decisions. The opposite has occurred. For brevity’s sake let me give you the number of cases decided by Text Box: 1880 229 1900 233 1920 195 1940 151 1960 238 1980 178 2000 84 2020 68 the Supreme Court every twenty years starting in 1880 (see table). And it seems to be going downhill from there. The Court decided 77 cases in 2021, but only 47 in 2022, and 58 last year. The Supreme Court is expected to decide 61 cases this year. Too many books to write? Too many trips to take? What do the Justices do with their time?

A wise person said: “Nothing is really work unless you would rather be doing something else.”

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Snippets

Whenever I watched the right wing “news” channel during Hunter Biden’s trial, I heard hosts and commentators state that this was a Delaware jury that, in essence, had been captured by the Bidens. The jury would “nullify” and acquit Hunter. This was said again and again, not as a possibility but as a certitude. When I watched Fox News after the verdict, I only heard that the evidence against the defendant was overwhelming and the verdict a slam dunk. I heard no one confess error for any previous statements.

“Think before you speak is criticism’s motto; speak before you think creation’s.” E.M. Forster.

Kristin Hannah’s bestselling The Women is a powerful novel. In 1965, Frankie serves as a nurse in the Vietnam War. She makes strong friendships but also experiences the horrors of battlefield wounds, napalm, and Agent Orange. She returns to a divided America where no one wants to hear about her military service. With no outlet to process what she has experienced, she suffers flashbacks and spirals out of control. And that made me think about one of my friendships. My closest high school friend served in Vietnam. In 1968 I took a road trip with him from Chicago to Georgia where he was going to report for duty to be sent to Vietnam. We did not talk about the correctness of the war. We knew that he was going; we knew that I opposed the war. That reticence continued after he returned when antiwar activities had increased. Although we have spent much time together over the years, we have never talked about his experiences in country. The Women made me realize that I have not been the friend I might have been.

“It isn’t the man who controls events but events that control the man.” David Diop, At Night All Blood is Black.

I don’t understand airport security. For example, why do I have to take a computer or iPad out of my carryon at one airport and not at another? And what’s the deal with shoes? TSA is a national agency, so why do the rules vary?

In one of those surveys, which I am sure is highly scientific, Finland ranked first with the highest percentage of happy people. It has been at the top for the last six or seven years. When I hear these results, I think of my friend who worked for Nokia. She liked the work except for her frequent trips to the headquarters in Finland.  It amused her, though, that Helsinki was the only place where she saw women with blonde roots.

I grew up in a small Wisconsin town, but I grew up hearing the roar of a lion. There was a zoo. It had Japanese macaques, which I liked watching, and other animals I don’t remember — except for Sadie the lion. She was kept in a small cage. Not regularly, but often enough, she roared, which was sufficiently loud to be heard at our house. It never sounded fierce, only lonely and sad.

 “Silence is a virtue in those who are deficient in understanding.” Dominique Bouhours.

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Snippets

I don’t understand all the outrage about the flag at Supreme Court Justice Samuel Alito’s house. If the flag had not flown, would you have thought that Alito’s rulings are any less partisan?

Oscar Levant to George Gershwin: “Tell me, George, if you had it to do all over, would you fall in love with yourself again?”

When we have visited a continuing care retirement community or a life plan estate or what I refer to as a place to die, a person showing us around always points out at least one library to us. However, on our last two visits, our marketing person referred to them as “libaries.” Should that affect our decision about whether we want to move there?

“Her brain is a cage of canaries.” Virginia Woolf referring to a Russian ballerina.

We had dinner with a couple who lived in a place to die. They were charming. One had been a hairdresser who was an expert in sign language for the deaf. She signed for Red Skelton shows at Atlantic City. She told us that the comedian had a following among the deaf because he did much pantomime and included a sign language “translator” for his stage shows. I found this interesting, but I also found it unsettling that our dinner companion referred to the performer as Red Skeleton.

Conservatives say that if Trump is elected, Democrats should be criminally prosecuted. I agree. If a Democrat falsifies records about hush money payments to an adult film actress to affect an election, those Democrats should be prosecuted.

“The nail that sticks up will be hammered down. Japanese Proverb.” Nami Hirahara, Snakeskin Shamisen: A Mas Arai Mystery.

A friend whom I am sure thought he knew the answer asked if anyone besides Trump had been prosecuted for falsifying business records as a felony. I did a little internet search. I quickly found one site that reported, “New York state has arraigned almost 9,800 cases involving the same charge since 2015.” Another site stated that Manhattan District Attorney Alvin Bragg had filed 120 cases of falsified business records in the several years before Trump was indicted, all of them felonies based on the concealment or commission of other crimes. A third site concluded, “Prosecution of falsifying business records in the first degree is commonplace and has been used by New York district attorneys’ offices to hold to account a breadth of criminal behavior from the more petty to simple to the more serious and highly organized. We reach this conclusion after surveying the past decade and a half of criminal cases across all the New York district attorneys’ offices.”

Stephen Colbert in his role as a right-wing blowhard said, “I don’t believe in the facts. The facts are liberal.”

I did an internet search for how to pronounce Swiatek. I still don’t know how.

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To Swim. Perchance to Breathe

This year I am not even going to make the promise to myself that I have broken many times in the past.

I am not a great swimmer. I blame Lake Michigan partially for that. I learned to take my first strokes in Lake Michigan off the beach of my Wisconsin birthplace. I am no expert on the currents of Lake Michigan, but I gather the lake’s water moves in several circular flows. As a result, the water temperature near the 1,600 miles of shorelines varies considerably. I know there are many places along the Lake where people swim comfortably and happily. However, while many people used the soft sand Lake Michigan beach of my hometown for games and sunbathing, not many people ventured into the water, or at least not for long. The water was almost always cold. At least in my memory, even in the hottest summers, the lake’s waters did not get above the low sixties.

It did not much matter that Lake Michigan was not a swimmer’s paradise. Wisconsin is filled with lakes of all sorts—big ones, small ones, ones with mucky bottoms, ones with rocky bottoms, ones with sandy bottoms, and like that. A half dozen or more “inland” lakes are within a thirty- or forty-minute drive from my boyhood home. There were plenty of places to go summer swimming.

Perhaps because there were many nearby opportunities to swim, my town did not have a municipal swimming pool, although the “Y” and the country club had pools. The family finances meant I was not a member of either. The parents, however, thought that I should learn to swim. They signed me up for lessons given by the Parks Department. And those lessons were in those Lake Michigan waters, which in my memory were in the fifties early in the summer when I learned to put my head in the water and take a few strokes. It was not much fun.

If family funds were not enough for a “Y” membership, you can be rest assured that we did not have a second home on a lake. I did little swimming as a boy. When I did, I found out that my strokes were marginally adequate but that I had not learned to breathe properly while swimming. I could swim 25 yards, sometimes fifty, while holding my breath. I had learned to take breaths by turning my head and gulping in air, but I somehow never got the knack of letting it out properly. I was really just holding my breath. And that is still my swimming technique, although I am no longer fit enough to swim 25 yards holding my breath. Our Pennsylvania community has a beautiful pool. For many years, I have told myself that I will go regularly to the pool and learn how to breathe while swimming. And in each of those years, I have lied to myself.

Even if I had been a better swimmer, I would still have been uncomfortable in the water because of my eyes. I was terribly nearsighted. I was told back then my eyesight was 20/400 or 20/500, but a cataract doctor recently laughed at that and said it was much worse. I was told as a kid that I was functionally blind, which meant that without my glasses I could not function. But I did have glasses, and my disability seldom impeded me. In some ways, it stood me in good stead. I learned to navigate rooms without my glasses, which was a bit like being in the dark. Even now, at least in familiar places, I often don’t need to turn on lights to get around a darkened room. However, sometimes when I had to operate without glasses it was a problem. I tried playing high school football glassless. That was impossible. When I did go swimming, my “blindness” made things difficult.

I was about 14 when I first went water skiing. My sister’s college roommate had a home near the Wisconsin Dells, which our family visited. The roommate’s father wanted me to water ski. I couldn’t chicken out, but my fear was not of falling but whether I would know where to let go of the rope in front of their cottage. I thought that I might not be able to distinguish it from the giant blur of other ones, and I was embarrassed to tell them how bad my eyesight was. Since I was not a strong swimmer, having to swim a long distance to the starting dock — even if I could find it — was scary. However, I could see blobs of color, and luckily the cottages were differently hued. I memorized the colors of their cottage and the two next to theirs, and I let go of the tow rope somewhat in the vicinity of where I was supposed to. Later I would go water skiing on Elkhart Lake, where the grandparents of my high school friend had a cottage. I learned the color schemes of the houses there, too, and did not have the same fear of having to swim halfway across the lake to get back to the right cottage. However, often when we did get back, Steve and his brothers would talk about all the good-looking girls they had seen on the lake while towing me. Sadly, I saw none of them.

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Not the Place to Die

On a previous trip to Florida, we had identified a continuing care community that interested us, but on our most recent visit we no longer liked it. My nephew asked me what had changed our minds.

The spouse and I have toured about a dozen continuing care places, or as I put it, places to die. We have concentrated on Type A communities. That means that the community has facilities for four types of care—independent living, assisted living, skilled nursing facilities, and memory care. The fee structures require a hefty sum to enter and then monthly fees that are also hefty. In a Type A community, however, the monthly fee does not increase should a resident move to a higher level of care. In other words, if I am paying $7,500 a month for independent living, I will continue to pay $7,500 if I move into assisted living even though the facility provides more care than I received before.

What I get for my monthly fee is similar from place to place but never precisely the same. Of course, the fee covers the rent for my apartment, utilities, real estate taxes, and usually weekly or biweekly housekeeping services. Some sort of meal plan is included. Sometimes this is a meal a day or thirty meals a month. In others, residents draw down from a set amount of monthly money. For example, residents may be “given” $350 each month, and this decreases each time the resident orders something. The food is generally cheaper than it would be in a commercial restaurant. The facility may have healthcare such as a nurse practitioner on site, and there is no additional charge for a visit to the nurse. They have aides for an emergency such as a fall. All seem to provide transportation weekly or semi-weekly to grocery stores, perhaps a mall, and religious services. The monthly fee also includes the use of the facilities such as a fitness center and meeting rooms. Many, but not all, have a swimming pool.

The places to die that the spouse and I have visited have 300-400 residents. Many have small, freestanding homes, often called villas, and two or three apartment building that connect with each other. The interconnected buildings almost always contain the public facilities—dining rooms, fitness center, etc. That ability to utilize facilities without going outside has seemed attractive, especially if the mobility of the spouse with her disability becomes worse, and she starts to use something like an electric scooter to get around.

The Florida place that interested us was larger — about 1,200 residents. That increased size allowed it to support better facilities than other places. It had five or six restaurants, while others have two or three. It had at least two fitness rooms that were well-equipped and staffed, good meeting rooms, a theater, and an aquatic center that many resorts would have been proud of. This included two swimming pools, one of which was an excellent lap pool, a spa, and two nearby pickleball courts.

It did not have the usual interconnecting buildings. Instead, in addition to some villas, this “village” had six or so separate 8-12 story buildings set around two “lakes” on seventy acres. It was necessary to go outside to utilize many of the facilities, but that seemed ok in Florida where the sun always shines (right?).

One of the buildings was brand new. It had lovely apartments with interesting floor plans. We have lived in a distinctive place for a long time and are spoiled by it. Moving into an ordinary apartment box, while perhaps inevitable, is not our first choice. So this was appealing. The place also cost less than many of the continuing care places we had seen in the north.

On our first visit we were only there for a couple of hours, and we didn’t think we should decide based on that. The marketing department said that we could come back for a two-night stay, and we decided to do that. Our concern was not the physical plant, apartment designs, or costs, but something more intangible–would we feel comfortable with the residents.

The spouse and I are lucky in having a broad circle of interesting friends. From our careers, we know scientists, lawyers, and academics, but we also spend time with full-time moms; a NYC reporter; an international correspondent; a marine engineer; investment bankers; Wall Street speculators; artists; a private equity entrepreneur; school teachers; a corporate financial officer; the head of an adoption agency; New York City government officials; architects; potters; bankruptcy specialists; a minister; nurses; owners of a boutique clothing company; restaurateurs; caterers; real estate managers; authors; workers in the tech industry; analysts for the Fed; a furniture company manager; an owner of a bar. You get the idea.

Most of these people are of my generation, but they are not stuck in the past. They often refer to an experience from earlier in their lives, but usually this is done to advance something in the present conversation. We may be old, but we don’t just look backward. When you are younger, fresh input comes from work and social life. That is less true at our age, but our friends are still mentally vibrant; they still want to learn; they are aware of current affairs and fashion and sports; they read all sorts of things, watch different kinds of streaming shows, go to plays and movies, attend concerts and exhibitions. I am lucky to have friends who regularly bring something new to the conversational table and who, in doing so, keep me more mentally alive.

The spouse and I don’t expect to duplicate our circle of friends in some new place, but we hope to find people who, because of their curiosity, knowledge, and activities, will be interesting to be with. We selfishly hope they will help keep us mentally alert and engaged. So we began to look for clues to see whether we might easily meet the kind of residents we hoped for in the place to die in Florida.

Our starting place was with the events calendars. All the places to die put out a weekly or monthly calendar of events. These include bus trips to grocery stores and places of worship, but also on-campus events such as sewing groups, knitting bees, watercolor classes, creative writing workshops, book groups, choral groups, bridge groups, improv classes, often serious lectures, entertainment from the outside, resident entertainment, and so on. We became concerned about our potential place when we realized that although it was three times the size of other places, it listed fewer activities than other places. I expect to be personally interested in only a few of the activities, but a variety of programs in which many participate signals something about the vibrancy of the place.

The calendar, it turns out, was somewhat misleading. The spouse noticed that there was no listing for mah-jongg (a deal-breaker!!!). When she mentioned that to someone, she was told that Joan so-and-so in Building A hosted mah-jongg, as did Mildred thus-and-such in Building C. For such facilities as the fitness center and the aquatic center, it was one community. However, for other purposes, the place seemed to break down into smaller building-by-building communities, and it felt as if you might not be entirely welcome in the Building A community if you resided in Building B.

Every place to die we have visited has a library. The best seem to have an acquisition budget; others are dependent on resident donations. I never expected to find all my reading in these libraries, but most of the libraries seemed to have some books I might like to read. The Florida place to die, however, did not have one library. It had one for each building. I suppose if the weather was inclement, it would be nice to go the lobby and find something to read, but by not consolidating the books, each building’s collection was skimpy. And most of the libraries we have seen had a shelf or more of books written by residents. I did not see that in this “village.”

Presumably some reading was going on. The calendar listed a book group, which later in the month was discussing a novel. But I thought that a place of over a thousand retired folks who had a lot of time to read might have multiple book groups, perhaps one for literature, another for history, and others for current events or poetry. Even my local bookstore has multiple book groups, and the attendees are working and raising families in addition to reading books.

What clinched our decision that we did not want to come to this place was our two meals with residents. The marketing person who took charge of us knew that our son was transgender and that, no doubt, is part of the reason our first night we had dinner in the more formal dining room with a lesbian couple, Maude and Phillie. They had been a couple for a dozen years. Phillie had been in a previous relationship of thirty-seven years, which ended when her partner died. They both had Philadelphia roots and had lived mostly in New Jersey. Maude had been a hairdresser who had gotten involved with organizations for the deaf. The other said that she had been retired since she was thirty-five, but I think she had been involved with real estate agencies.

We did learn from them that this Florida place had an active LGBTQ+ organization with over 220 members. Other communities we had visited often touted that they had gay residents, but this was remarkable. That was encouraging, and they should some interest in our son. My reaction changed when I asked them what constituted a typical day for them. They looked blankly at each other. One finally said that they went to the pool two or three times a week. And…..? They confessed that the amount the place allocated for food covered only about fifteen meals a month. They kept a full pantry, and then–giving me the inside scoop–they said they shopped at a Walmart supercenter because it had better prices than the nearer Publix.

The next day we had a poolside lunch with a couple originally from North Carolina where Lorraine had been a third grade teacher and her husband Clay a public school librarian. She said little other than that she was in charge of the place’s thrift shop, open four hours a week, and complained that few realized how much work it took to operate it. Other than an adamant “Yes” when the server asked if anyone wanted dessert, she literally said nothing. She looked surly, as if she had been dragged to a free lunch against her will. Clay’s volubility, however, helped to eliminate any awkward pauses. He told about his days at the village. Two or three days a week, as he had that morning, he went to aquatic aerobics. A couple of mornings he went to the gym. Other mornings, usually with a friend, he walked around the seventy-acre campus, stopping, I am sure, to chat with anyone he came across. Clay smiled proudly and said that others called him the mayor of the village. Clay said that the previous night, they had gone to one of the village’s cultural events—a cover concert of three crossover R&B stars, which he pronounced excellent.

When we told him about our dinner the previous night, he labeled Phillie “a real pistol.” He then went on to say that he had been talking to friends from home and told them that he and Lorraine were going out to dinner with another couple, Joe and Bob. His friends, he said, were amazed. They had not known anyone before who knew — much less dined with — an actual single-sex couple. I felt awkward hearing a story that I might have heard two decades ago.

Clay continued by saying that their travels had made them more sensitive to cultural differences. As an example he cited their trip to Morocco where he said they had made friends with their guide. The Moroccan pointed out that gender relations were much different in his country. For example, he had never kissed his wife in front of her parents. As they were walking, however, the guide took Clay’s hand. This clearly made Clay uncomfortable, and Clay said that this would not have happened in the good old U.S. of A. The guide said that this was a gesture of male friendship in his society. Clay clearly still felt uncomfortable with his memory of walking down a foreign street with another man holding his hand. I wondered why he was telling me this story.

Our assigned dining companions over the two meals were different from each other, but in a way important to the spouse and me, they were very much alike. They did not ask anything about us. That is a slight exaggeration. Clay did ask the derivation of my surname and what I had done for a living, but there was no follow up. And literally, none of the four asked the spouse anything—where she grew up; her education; her career; her hobbies. We certainly gave openings for conversation. We thought we might be early for our lunch, so we carried books. Lorraine and Clay did not even glance at them, much less ask about them. I wore a tee that said, “Be careful or I will put you in my blog.” No comment. The spouse said that we were going to take a trip to Provence in the fall sponsored by my alma mater. Nothing. And so on. Maude and Phillie were the same. They were all more than happy to talk about themselves (and a bit about our son), but a real conversation was beyond them. And in talking about themselves, they did not indicate that they read anything, watched movies, or attended lectures. They were pleasant people on one level, but….

The last night we ate at an informal restaurant on campus. The servers were interesting and funny, and the food, as it had been at the other meals, was good. As we looked around the room, we saw a man come in by himself. He sat down and to our surprise, opened a book. We finished eating before he did. On our way out, I stopped at his table and said, “Are you reading anything good? I am always looking for book recommendations.” He said that the book was about a lad growing up in Ireland, but he did not like the novel enough to recommend it. I pressed on and asked if he had read anything good recently. He paused and said no and continued, “I am not much of a reader.” I smiled, and as we started to leave, I could swear his eyes locked onto mine saying, “Please don’t go yet. I am lonely.”

We were more than ready to leave this place where we thought that we might like to live. Perhaps if we had to, we could carve out an acceptable life there, but….

If we needed a clincher, venturing outside our building to visit other places on campus was a trial. Florida was experiencing an early, but deadly, heat wave which was compounded by excessive humidity. Breathing was difficult and movement exhausting. Florida politicians may not believe in climate change or want to acknowledge global warming, but that will not stop its reality.