The law surrenders
Indignity Vol. 4, No. 207
POLITICS AND CRIME DEP'T.
Someone's Going to Do Something Worse
TODAY, SPECIAL COUNSEL Jack Smith asked the judges overseeing Donald Trump's prosecutions for the January 6 attack on the Capitol and his unauthorized retention of classified documents to drop the charges. "[T]he Constitution," Smith's wrote to the judge in the Jan. 6 case, "requires that this case be dismissed before the defendant is inaugurated."
The Constitution appears to require many things, although in practice it turns out that more and more of them are optional. Nowhere in the text, though, does the document say that the president is immune from criminal prosecution, let alone that the act of winning the presidency makes existing criminal prosecutions go away. The non-prosecution of this incoming president is a new extension of a Justice Department policy about not prosecuting a sitting president, which is a rule about how to manage the contradiction between obeying the executive chain of command and upholding the law. The solution to the contradiction is that when the president breaks the law, the law has to go.
Smith didn't shut down the prosecution because of the Constitution. He shut it down because Donald Trump was going to shut it down. He is resigning his job as a federal prosecutor because Donald Trump was going to fire him, and Trump still plans to fire the people who worked with Smith. The policy is simply bowing to the fact that Trump is too powerful to prosecute. The principles get filled in afterward.
The same set of people who were trying to justify the situation last week will be trying to justify it again. Before Smith announced he was dropping the cases, the former Bush administration speechwriter and Marc Thiessen and his podcast co-host, Danielle Pletka, published a piece in the Washington Post urging Joe Biden to pardon Trump and fantasizing that if Biden did so, he would "be remembered by history for a final act of statesmanship that brought a divided America together."
We already had a president try that, in 1974, when Richard Nixon resigned and made Gerald Ford president, and in exchange Ford gave Nixon a blanket pardon for whatever crimes he may have committed as president. Instead of putting Nixon on trial and exposing the story of exactly how the now ex-president had organized a lawbreaking conspiracy to help win reelection, Ford declared that "someone must write the end to it."
The writing kept going. Forty-seven years later, the former Nixon campaign flunky and dirty-tricks operative Roger Stone was helping Trump organize the January 6 attack. By then, Trump had already pardoned Stone after he was convicted of obstructing the investigation into the potential crimes of the 2016 Trump campaign.
In the intervening chapters of the story Ford wrote with his pardon, there was Ronald Reagan negotiating with the Iranians to make sure they kept the American hostages in Tehran until after he beat Jimmy Carter, and then Reagan cutting the illegal Iran–Contra deal, and then George H.W. Bush pardoning the Iran–Contra defendants before he himself could be publicly implicated in their crimes. And then came the 2000 George W. Bush campaign—with the help of Roger Stone—sowing enough chaos in Florida to prevent a recount, an effort that three future Supreme Court justices took part in. And George W. Bush committed torture and various other war crimes, for which no one ever came close to facing legal punishment, and Marc Theissen wrote excuses for it all, and parlayed that into a job as a columnist with the Washington Post.
And while Trump and Trump-friendly courts were grinding his would-be prosecutions under the relentlessly advancing caterpillar treads of his reelection campaign, Joe Biden was violating United States law to cover up Israel's violations of international law. When the president does it, that means that it is not illegal.
What is the point of trying to pretend there's any reason or rightness to any of this? Fifty years of excuses for presidential impunity have only led to more crime and more bloodshed. Today's news just affirmed that it's nowhere near finished.
SIDE PIECES DEP'T.
Tom Scocca
OVER AT DEFECTOR, I wrote about the spectacle of this month's Federalist Society gathering, in which Republican judges tried to get huffy about their legitimacy while openly gloating about Trump's return:
The joke was that Fifth Circuit Judge Andrew Oldham said something that could also have been interpreted as celebrating Donald Trump's victory in the presidential election. The joke was that celebrating Trump's victory would have been wildly inappropriate and partisan for a federal judge. But the joke was also that everyone in the room easily understood the ambiguity, because the assembled judges and legal scholars were, in fact, all rooting for Trump.
The joke, that is, was the joke of the Federalist Society, the United States' most active and successful partisan political organization this century, whose success depends on pretending that it doesn't practice politics at all. Abortion is now illegal in 13 states, gun control laws are in retreat, federal agencies are being stripped of their power to make regulations, and Donald Trump was free from the threat of prison and on the presidential ballot because the Federalist Society wanted all those things to happen and made them happen.
Tom Scocca
And for Air Mail, I reviewed Richard Munson's Ingenious: A Biography of Benjamin Franklin, Scientist:
Franklin in Paris stood as a living proof of concept that the former colonies were fit to stand on their own—a citizen of both a new country and an international community of intellectuals. Even as he “pushed American sea captains … to invade England’s coastal towns and seize ‘ready money and hostages,’” he told the American Navy to grant safe passage to the returning ship of the late Captain James Cook, bearing “maps and specimens” from its exploratory Pacific expeditions.
Liberty and progress were expressions of one another. The message borne by Franklin’s story in this moment is that the keeping of a republic is not simply a matter of hanging on to it through political ritual but of keeping it in the sense of tending and maintaining the nation. Underneath the written ideals and the processes of government—“he supported the regular punishment of the executive when his misconduct should deserve it”—Franklin set out building a nation of fire brigades, of effective postal service, of productive industry.
WEATHER REVIEWS
New York City, November 24, 2024
★★★★ Round, compact cumuli were drifting overhead. The top of the sweetgum was red speckled with yellow, and the lower parts were yellow speckled with green. Everyone had bundled up against the chill but the late-morning humidity took the bite out of it. Downtown, people in winter coats huddled over large bowls of soup on a tiny table. The sky behind the various layers and patterns of clouds was genuine azure; the light bore down low and precise. A puffy cloud wore fuzzy tendrils sprouting from its top edge.
EASY LISTENING DEP'T.
HERE IS TODAY'S Indignity Morning Podcast.
Tom Scocca
Click on this box to find the Indignity Morning Podcast archive.
TOM SCOCCA
ADVICE DEP'T.
GOT SOMETHING YOU need to justify to yourself, or to the world at large? Other columnists are here to judge you, but The Sophist is here to tell you why you’re right. Direct your questions to The Sophist, at indignity@indignity.net, and get the answers you want.
SANDWICH RECIPES DEP'T.
WE PRESENT INSTRUCTIONS in aid of the assembly of a sandwich selected from Entertainment Cook Book: Recipes by Students of Central College for Women, Lexington, Missouri, compiled by Lexington Central College Club, Mo. Central College for Women, published in 1919 and available at archive.org for the delectation of all.
MINCED HAM SANDWICHES
An excellent filling for sandwiches utilizes the scrappy portions of a boiled ham. The ham is ground in a meat grinder; cracker crumbs are added, celery to suit the taste, and mayonnaise dressing to the consistency proper for spreading. —Josephine Elizabeth Smith, Lawson, Mo.
If you decide to prepare and attempt to enjoy a sandwich inspired by this offering, be sure to send a picture to indignity@indignity.net.
