Heads I Win, Tails You Lose: Trump Edition

When I write these blog posts, other things often come to mind afterward. 

There is a concept known as the "wisdom of the stairs" regarding stuff you remember or know that you do not in the heat of the moment. The concept sounds even more impressive if you use the French (L'esprit de l'escalier). Impressive/pretentious, whatever works for you.

Some post-oral argument analyses of the Trump immunity argument at the Supreme Court point out a rather glaring thing. Trump's attorney during his second impeachment trial granted that he would be liable for criminal punishment for his actions. This was referenced during the court of appeals deliberation as well. 

[Chris Hayes provided video evidence.]

The concession was not only for "unofficial" acts. We were not talking about Clinton lying about sexual matters here. We were talking about Trump's wrongful interference with the passage of power.  And, Trump abused his office in various ways to do so. This made the whole thing worse. 

At some point, you are a sucker if you believe people. When they assure you that they are playing fair but are playing by "heads I win, tails I lose" rules, if you rely on them (or talk about reasonable possibilities), you might just want to be deceived. At this point, we should know the deal.

The Trump Administration repeatedly stonewalled when asked for documents or testimony. They cited executive immunity or some other form of execution power. They assured the courts and others that there was a check. Impeachment. 

When impeachment did come, the same stonewalling took place, including blocking witnesses. And, impeachment itself was deemed improper. Congress was doing it wrong. Putting aside the bullshit on the merits (down to the vice president's own brother -- a member of Congres -- being involved), there was no realistic chance that they would have done it "right" in a way the Trump side would accept. 

After Trump took part in an insurrection in January 2021, the House quickly impeached him, after Pence refused to take part in a "25th Amendment" remedy, arguing somewhat reasonably it was not intended for that purpose (think JFK in a coma or something). 

(A few people wanted them to go faster, which is not realistic. I have seen people who wanted them to impeachment mere hours after the attack. Maybe in a different world, but in this one, with a small majority, not going to happen.)

Senate Republican control ended on 1/20 with the election of two Georgia Democrats and the vice president providing the tiebreaker. The impeachment trial took place afterward. Some Republicans argued that a trial could only take place during the term of office even though one of the constitutional remedies is disqualification from future office. 

A free pass in the final days comes off as ridiculous here. Furthermore, it goes further than that. A person can simply resign. They could therefore under this scenario be totally free from the second half of the constitutional reason for impeachment (putting aside possibilities such as denial of retirement benefits).  

This absurd path was rejected the first time the House impeached a Cabinet member.  A resignation very well might guide some senators to deem a conviction as unnecessary. Nixon's resignation removed a major danger as well as implied some degree of guilt. Trump never resigned and never granted he was wrong. Unlike Nixon, he planned to run for re-election.

Republicans during the impeachment trial (including Mitch McConnell himself) assured us that the Senate not convicting would not remove liability. The courts could still deal with him. Moscow Mitch was quite passionate, especially for him, about that fact.

It will only shock the fatuous that the goalposts are moved again. Not to worry! The argument is that only official acts are subject to immunity. Nixon's official acts appeared to be subject to criminal liability. His "when the president does it, it is not illegal" is repeatedly cited as a horrible statement. We will now try to water down what "official" might entail. 

The special counsel side suggested there were some "core functions" that might be immune or maybe it was a very high test. I felt at the time this was a sort of trap. Start down that line, where do you stop? We were down this path during the Bush Administration regarding torture. 

And, the whole thing is tedious. Nominating judges is a core function. But, you cannot bribe people even there. To cite the most patronizing/condescending-sounding justice possibly ever (Gorsuch), we are slicing the baloney rather thin.  

The game that will be played now is that Trump won't really be "above the law." We will just have to wait while the case is sent back to apply some new (made-up) guidelines about what is truly official acts and so forth. Like his dude process during the impeachment process, doubtful in the extreme that this will be done the "right" way for the usual suspects. 

To summarize. Impeachment provides a check. Impeachment has to be done "right." The criminal (and civil) process provides a check. Unless it doesn't.  Experience has shown that impeachment is basically for judges who were prosecuted with a few notable exceptions that do suggest it might be a bit stronger than that. What will restrain presidents? 

Oversight is one check but again Trump blocked it in various respects. The first impeachment had a lesser recalled count addressing just that. Media coverage and other checks have their problems too. Granting even powerful dictators will have practical checks, our system has more checks that warrant our respect. They should not be artificially stripped of their power.

Mix in the electoral check (putting aside that the Constitution does not give the people absolute discretion there) which has its own issues as we saw twice already, down to Russian interference with the Trump Administration enmeshed in the process (see, e.g., the Mueller Report, Senate investigation, and so forth).  

We are repeatedly told that "courts won't save us" or "the Constitution won't save us" as if people like myself naively think otherwise. I am also not sure how many have many "illusions" about this current Supreme Court. Did not stripping abortion rights show us that? 

Courts still are an important part of our system of government. We should expect and demand that they function in a halfway reasonable way. We can strongly speak out when they do not. The system is flawed. We know this. We know it when we protest an unfair criminal prosecution. 

As people continue to try to argue for reasonable results, let us admit the lack of good faith. The Trump side at times truly shows their cards. We see this regarding other things too, including restricting abortion. The average person does not want an extreme position there, however, so we are assured Trump's side is being reasonable. Thus, there is some life or health exception. We have seen the problems of that in practice.  

When the goalposts keep on being changed, the bottom line is that the Trump side is trying to keep him free from any significant consequences. After all, they want him to win the presidency again. Civil consequences are allegedly unfair. He could not even be asked to handle sensitive national security documents carefully.  

And, four to six (in varying degrees), justices want to help him. I will toss in three more regarding the Colorado insurrection case. The liberals there talked a good game about leaving open consequences. But, what is the net value if they closed off the one (state enforcement) that was actually realistically possible? 

As the goalposts keep on changing, at some point what is this but a willingness to enable him?