On Prosecuting Trump and Packed Supreme Courts

One poll found that around one in three Republican voters in 2016 felt judicial nominations were a major factor in the election.  

It is unclear the number for Democrats.  I doubt it was as much.  An open Supreme Court seat could have been filled one way and swung it to make Kagan the de facto co-Chief Justice (Ginsburg and Breyer were the eldest but Kagan was a key strategist and was going to be there long-term) and I don't recall it mattering to many Democratic voters.  

A few still complain about Garland being nominated as if somehow an African-American nominee could have changed much.  They sneer at the choice while Garland would have alone changed things and anyway, if the Democrats won the Senate (which they did not) Clinton very well could have quite reasonably noted that they had to start from scratch, and she would pick someone else.  Did minority voters need more reason to battle against Trump?  

We know what happened.  Three new members of the Supreme Court, who last year took away basic rights from women.  They allowed states to enslave women.  Happy Juneteenth tomorrow.  No, you are not doing enough Dick Durbin and company.  Anyway, we handled that.

This cri de coeur is a long prelude but it helps explain why people accepted Trump.  It is part of the equation along with money, racism, anti-liberalism, and so forth.  The justices by the way do not have "life tenure."  

We skip over stuff in the Constitution, don't we?  

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Good behavior (let's use American English people).  This is supposedly self-enforceable as applied to the Supreme Court (at least) except for impeachment.  But, impeachment is applied to all federal offices (members of Congress apparently not covered with a separate means of removal).  

The term "good behavior" should be seen as a special limit applied to judges. But, we blithely speak of "life tenure" like we speak of freedom of expression (a gloss on the First Amendment) and for some reason a "privilege" of not self-incriminating ourselves.  But, that implicitly somewhat weaker word that "right" is not there either.  It is the "right" against self-incrimination as much as of having a lawyer.  

In a past entry, I referenced an article that put forth an originalist case for applying statutory limits (such as bribery or serious felonies) which would kick in automatically with judicial process rights in place to guard against abuse.  It was basically a road not taken even if you could find a provision passed by the First Congress that seemed to provide a precedent.  

We are at a place where even a binding ethics code applied to the Supreme Court is supposedly a threat to the separation of powers.  A bit absurd.  

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We are starting to get actual prosecutions against Trump (civil judgments have already occurred as did a criminal case against his business).  

This is put forth as "divisive" even by a strong criminal reformer.  But, even he (who found a reason not to prosecute Bush43) grants Trump -- at least as applied to the records-related crimes -- has the personal wrongfulness warranting prosecution.  I'm glad we have reached the point where his in effect blackmail attempt is not working. As much.

It’s not like Trump’s behavior is being questioned for no reason. He just keeps doing things.  

People still try to argue that the investigations, impeachments, prosecution efforts, and more against Trump are in effect a partisan witchhunt. This doesn't hold up.  This discussion provides an extended analysis of how Trump simply kept on committing crimes since basically the 2016 campaign season.  Those who observed him long term would spread that back to the 1970s, with his and his father's civil rights crimes.

[Happy Father's Day!]

The fact nothing comes of each attempt is not a matter of him being found innocent. The Mueller Report surely wasn't that though the usual suspects sneer at him and how he is weak and not brave since he didn't somehow prosecute in the teeth of his boss Attorney General Barr or somehow block multiple pardons and Barr screwing over the investigation.

The investigation ended without Mueller ever bringing a charge against Trump, although the special counsel successfully prosecuted several major figures in Trump’s orbit. that require investigation. He has done so sometimes in spite of, and sometimes with the help of, the advisers and attorneys surrounding him who are supposed to keep him out of trouble. 

(The prosecution part is basically ignored.  Seriously.  It is like it didn't happen, in part since key players got off with the help of Barr and pardons.)  

There is a rule -- you can not like it but it is there -- in place now where POTUS cannot be prosecuted while in office. Mueller, not Superman, could not just ignore it.  He did do the best he could basically and listed various things Trump did that could be deemed criminal.  Liberal celebrities even performed a summary form of it to promote the point.  

There were impeachments. Republicans didn't deny he did what he was charged with; they found reasons to handwave it or argue there were technical problems with conviction.  McConnell even got all mad and said he still was open to consequences.  He was full of shit, of course, since he was not willing to risk anything to actually make that more possible.  

There is no "precedent" against prosecuting former presidents. Nixon was pardoned for that very reason.  Ford argued it was in the public interest at the time.  Nixon resigned.  He wasn't running for office in 1976 and continuing to commit crimes.  And, even then, Ford's choice is dubious. Many at the time thought so.  It helped his narrow loss in 1976.  

The Constitution itself leaves open presidents to be prosecuted even if they are removed by impeachment and denied future federal office.  Every single other political position is not deemed off-limits here.  Nor is it some basic universal norm like due process. The article linked lists multiple foreign leaders who were prosecuted.    

Again, this specific case is not a partisan witchhunt. That is bullshit.  Trump is if anything over and over again given more rope.  A higher test is provided to prosecute or obtain consequences. And, then there is always some new reason why it is wrong to obtain them. Oh. Don't think we are saying he is above the law.  We just keep on finding ways to let him get away with breaking it.  We are not his enablers! No! 

The New York City prosecution is supposedly a bad idea though few deny he actually committed wrongdoing.  Rick Hasen years back said the acts probably violated federal law. But, now it's like down on the list.  Trump is so full of crime that he supposedly should be let go for the "petty" ones.  The local prosecutor is stretching things though the basic argument seems rather simple enough.  And, even then, he still would surely be guilty of a bunch of misdemeanors.  Pshaw.  Be "divisive" to care about them!

The crimes are not only significant as a matter of protecting the integrity of city corporations but his crimes were a far from trivial corruption of the 2016 election itself.  If the state can serve the public good to address this because the federal government is busy with other stuff, it does not to me seem some sort of abuse of the system.  Even some liberals want to give him in effect a free pass here too.  Come the fuck on!

One op-ed over at the NYT (the familiar conservative co-author was a red flag) argued Biden should pardon Trump.  Part of the argument was the idea "we all know" that Trump is being selectively prosecuted. This is bullshit.  Biden and Pence did not obstruct justice and willfully retain documents and expose them to others.  Clinton did not either. And, well, none of them did all that Trump has done.  It's absurd.

A pardon is not a recognition of guilt necessarily, at least, accepting one is not.  I talked about this in the past.  A person who probably did not do it might be pardoned, partially since the possibility to obtain some other form of relief is unlikely.  It can be a way to help public safety or the like without the person granting they are guilty.  It does imply guilt in various cases.  

This is of some solace.  A pardon or commutation generally should be provided in return for something.  Innocence aside.  The person often already suffered some punishment, including a long prison term.  They admit at least some form of guilt.  They provide some sort of payment for their acts.  Trump is not doing any of this. He is from what we can tell over and over again continuing to crime, including inciting violence. 

I can imagine some sort of plea deal where he admits guilt, is willing to support the prosecution, not crime again, pay compensation, and definitely agree not to run for office again [the easy way here is to grant for the purpose of the law that he committed insurrection and therefore is disqualified].  

Some say "hell no" to this, though it is all very hypothetical at the moment.  But, you know, I can see some value in it.  Doesn't seem like it is to be.  We could have avoided at least some of it if a few more Republicans convicted him in the second impeachment.  Well, they rather enable Trump.  Jumped the shark there.  Dare to dream though.

It is, rather, serial behavior on his part and a habit of seeking to prevent investigators from learning the truth that has legitimately required the investigation of, and indictments for, one destructive decision after another.

And, get a packed SCOTUS in the process.

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One more thing to toss in.  There seems to many a certain hard-to-accept quality to have Judge Aileen Cannon, the Trump nominee whose intervention in the document investigation was so heavy-handed and wrongheaded that the conservative 11th Circuit of Appeals knocked it down in a dripping with disdain fashion.  Toss in her lack of experience.

People want her to recuse.  If she doesn't, they want the court of appeals to require her to do so.  We have a few liberals and other sorts sneer at this. It is just stupid to think lacking experience is grounds for recusal. As if that is all people are saying.  The patronizing tone is even harder to take from one or more law professors who actually WANT her to recuse.  

I won't pretend to know the exact rules here but I do know the basic arguments being made.  And, they are not just being made by the general public.  Yes, legal minds can and do have bad takes.  Often.   But, recusal itself is something of a hazy thing.  There are no magic rules that make each case crystal clear.  There are shades of gray.  

And, this is not just some ordinary case.  Even if someone I told that too made out as if "not" should be put in scare quotes.  It is.  Trump's special benefits only underline this.  Again, even people who say she can't be forced to recuse sometimes grant she should.  If she should, there must be some sense of bias. Judges should not just recuse for no reason.  

There is some reasonable appearance of impropriety here.  There should be a way to not have both someone who he picked and someone who already showed the public clear reason to doubt her lack of bias.  This is not merely a matter of a conservative judge. Again, she has been overruled already by a conservative-leaning panel.   It is everything as a whole.

It is just aggravating we even should be in this position.  The hope is not only that we will get through it somehow.  It is that Trump committed and keeps on committing so many crimes that this won't even be the only federal protection (the 1/6 investigation continues and there are possible counts in the document one outside of Florida).  

Life continues to be aggravating as we try to find the good stuff.