Bedlam, Murder, and Immunity
The hit-man presidency.
Headline of the day: āTrump warns of ābedlam,ā wonāt rule out violence after immunity hearingā - Washington Post.
āI think they feel this is the way theyāre going to try and win, and thatās not the way it goes,ā Trump said. āItāll be bedlam in the country. Itās a very bad thing. Itās a very bad precedent. As we said, itās the opening of a Pandoraās box.ā
Meanwhileā¦
āThreats to political leaders surge and haunt U.S. democracy as 2024 begins.ā
On Wednesday, bomb threats forced evacuations, closures or stepped-up security measures at more than a dozen state capitols, in Connecticut, Georgia, Kentucky, Michigan, Minnesota, Mississippi, Montana, Wisconsin, Hawaii, Maine, Oklahoma, Illinois, Idaho, South Dakota, Alabama, Alaska, Maryland and Arizona.
How bad is it?
Experts say that acts of physical violence toward officials and politicians since the attack on the U.S. Capitol by a pro-Trump mob on Jan. 6, 2021, remain relatively rare. But they caution that the possibility of harm being inflicted on public servants is already undermining the health of U.S. democracy because the intimidation risks influencing their decision-making.
Officials who have been targeted say they fear that threats could, at any time, tip over into physical violence.
āI am really worried that there is going to be a tragedy,ā Wisconsin Supreme Court Justice Jill Karofsky said in an interview. āI believe people when they say that they want to hurt us or kill us. I donāt think theyāre idle threats.ā..
Karofskyā¦ said she thought it was important to let the public know what officials are dealing with.
āWe are at a moment of time where our democracy literally is on the line, and we have to figure out if we are just going to turn it over to a bunch of insurrectionists who think it is perfectly okay to use violence and intimidation to get the rulings that they want in a courtroom,ā Karofsky said. āOr are we going to have a democracy where people follow the rule of law? And if I donāt stand up and if other people donāt stand up, and we donāt talk about this, weāre going to lose this battle.ā
The hit-man presidency
Iām guessing you have already seen/heard about this, but it is nonetheless gobsmacking:
Unfortunately, this is real life.
Former president Donald Trumpās lawyer argued that presidential immunity would cover the U.S. president ordering political rivals to be assassinated by SEAL Team Six.
During a hearing at a federal appeals court on Tuesday, Trumpās lead lawyer John Sauer made a sweeping argument for executive immunity, essentially saying that only a president who has been impeached and removed from office by Congress could be criminally prosecuted. Therefore, Sauer argued, the former president should be shielded from criminal prosecution.
Judge Florence Pan, asked Trumpās lawyer:
āCould a president order S.E.A.L. Team 6 to assassinate a political rival? That is an official act an order to Seal Team 6?ā
The obvious answer, of course is no, the president does not have the right to order the murder of a political rival. But Trumpās lawyer tried to spin his way out of a direct answer, arguing that the president would have to be impeached by the House and convicted by the Senate before being held criminally liable for killing his rival.
The judge wasnāt having it.
āI asked you a yes or no question,ā Judge Pan pushed back.
āMy answer is a qualified yes,ā Trumpās attorney said. āThere is a political process that would have to occur.ā
This was nonsense piled upon constitutional absurdity. The actual language of Constitution makes it clear that impeachment did not preclude subsequent criminal prosecution:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
In Trumpās upside-down legal universe, his lawyers are arguing that the clause means the opposite of what it actually says, insisting that it bars prosecution except in cases of impeachment.
The argument is frivolous with hair on it.
Judge Pan cut through the legal bullshit: "Once you concede that presidents can be prosecuted under some circumstances, your separation of powers argument falls away. And the issues before us are narrowed to, are you correct in your interpretation of the impeachment judgment clause?
Does the impeachment judgment clause actually say what you said it says? That's all we really need to decide."
You donāt have to be a constitutional scholar to see where this is going.
The others judges also expressed skepticism about Trumpās argument that presidents and post-presidents should have absolute immunity.
In a notable exchange, Judge Karen Henderson, an appointee of President George H.W. Bush, seemed skeptical of that claim, saying: āI think itās paradoxical to say that his constitutional duty to take care [that] the laws be faithfully executed allows him to violate federal laws.ā
**
BONUS: The Trump Flip-flop. As the judges noted, lawyers for Trump had made exactly the opposite argument during his 2021 impeachment trial:
āWe have a judicial process in this country; we have an investigative process in this country to which no former officeholder is immune,ā Trump attorney David Schoen said at the time. āThat is ā¦ the appropriate one for investigation, prosecution and punishment, with all of the attributes of that branch.ā
Schoen argued that the courts were best prepared to adjudicate such complex legal issues because Congress ādoes not and cannot offer the safeguards of the judicial system.ā
Fellow Trump lawyer Bruce Castor echoed the point at the time even more directly.
āIf my colleagues on this [Democratic] side of the chamber actually think that President Trump committed a criminal offense ā¦ after he is out of office, you go and arrest him,ā Castor said.
Henderson pointed to Trumpās lawyers arguing in another case that the version of immunity they sought then āwould expire when the president leaves officeā and would not āplace the president āabove the law.āā
A Trump lawyer in that case said that āas the text of the Constitution makes clear, the president like all other citizens is subject to the laws and jurisdiction of states and the federal government alike.ā
But, as is so often case, that was then. This is now.
Happy Wednesday.
Birtherism returns
Our friend Christian Schneider noted yesterday: If you had the āDonald Trump spreads racist birther conspiracies about Nikki Haleyā ticket, itās time to cash it in.ā
Of course, Haley is eligible because she was born in this country. But, as we know, Trump is hardly restrained either by the facts or even a semblance of basic decency when it comes to these things.
And you know what else is back? The Muslim ban, with all of its deplorable trappings.
Even as he raises bogus questions about Haleyās eligibility, Trump is attacking her for refusing to support his bigoted jihad. Will Saletan writes in the Bulwark:
IN THE FINAL DAYS BEFORE THE IOWA CAUCUSES, Donald Trump is accusing Nikki Haley of being soft on terrorism. But the way heās doing it tells a deeper story about Trump, his bigotry, and the fascist threat he poses: Heās attacking Haley, in effect, for opposing his 2015 proposal to ban all Muslims from coming to Americaā¦.
Thereās no mystery about what Trump is doing. He has always distrusted Muslims. He believes, correctly, that most Republicans share that feeling, and he has no more compunction about using this as a wedge against Haley than he did about using it against Obama. Trump knows that if Haley were to fire back at him, by pointing out that Trump wanted to ban all Muslims and she didnāt, that position would hurt her in the Republican primaries. In a party full of anti-Muslim sentiment, she canāt afford to make that point. And so far, she hasnāt.
Congrats, Ben!
Our friend Ben Wittes has been awarded the āGolden Heartā award by the president of Ukraine, āFor a significant contribution to the strengthening of interstate cooperation, support of the sovereignty and territorial integrity of Ukraine, popularization of the Ukrainian state in the world.ā
You really should read Benās reaction here. He writes:
I hope #SpecialMilitaryOperations have served to remind such Americans and Europeans of a few simple things:
Not to forget about Ukraine, not to get distracted, and that ātiredā may be a reality but it cannot be an excuse.
Not to confuse the duty to host an embassy and its staff with anything like approbation or neighborly acceptance.
To remember that all fights by democratic societies to defend themselves are interlinkedāthat if you think youāre defending democracy at home but youāre content with the rise of authoritarianism abroad, youāre actually not defending democracy at home. Youāre throwing others out to the zombies buy yourself time.
And, of course, āPutin khuylo!ā
Tim O'Brien: The Most Corrupt President. Ever.
On Tuesdayās podcast, Bloombergās Tim OāBrien joined me to discuss the latest revelations about the former president ā and Trumpās hope for a stock market crash under Joe Bidenās watch.
Heās willing to visit financial disaster and misery upon millions of people. Just so he doesnāt get painted as Herbert Hoover even though we already know that heās Warren Harding.
Heās easily the most corrupt person to ever inhabit the White House.
He is rudderless, and heās a moral vacuum, and heās soulless, and heās malicious. And heās willing to create panic in peopleās minds.
You can listen to the whole thing here. Or watch us on YouTube.
BONUS for Bulwark + Members: How to Handle the Trump Spew
On our weekly podcast, Mona Charen and I agree - from different directions - about controlling the discussion in the next 11 months.
Bulwark + Members can listen to the whole thing here.
Quick Hits
1. Anti-Trump Means Anti-Democracy? You Canāt Be Serious
Ronald Radosh and Gabriel Schoenfeld in todayās Bulwark:
Berkowitz exaggerates grotesquely in calling the federal bureaucracy āoverwhelmingly progressiveā (has he ever visited the Pentagon?). But even worse: he disingenuously ignores the subject of Project 2025, the Trump-aligned Heritage Foundation plan to gut federal civil service rules and staff the government from top to bottom with Trump loyalists, ready to do his bidding. Combine Project 2025 with Trumpās expressed willingness to exercise his pardon power on behalf of those of his followersāthe violent Proud Boys and Oath Keepersāready to violate the law at his instruction, and we have a recipe for lawlessness and tyranny.
2. A Ray of Hope for the 2024 Elections from Pennsylvania
Seth Bluestein and Neil Makhija in this morningās Bulwark:
Pro-democracy Republican candidates prevailed in seven of those eight counties, ultimately ensuring bi-partisan, pro-rule majorities on their commissions. In the general elections, democracyFIRST helped elect pro-democracy majorities in nine of the 11 counties where they invested. Thanks in part to their work, heading into the 2024 election, of the 16 most competitive counties in Pennsylvania, which include 3.3 million registered voters, 13 will now have pro-democracy majorities on their county commissions. Pennsylvanians should take heart that, by and large, next yearās election is in safe hands.
Cheap Shots
The former President isn't saying he can just assassinate rivals. He's saying that he can assassinate rivals provided that his cronies in the Senate cover for him. Once again, the rest of the GOP covering for 45 are a very large part of the problem.
"Not to forget about Ukraine, not to get distracted, and that ātiredā may be a reality but it cannot be an excuse."
If we abandon Ukraine on the grounds that we are "tired" by the conflict, our decadence is complete. Our contribution to the effort requires so little from us that if the conflict isn't in the news to remind us of our contribution, we wouldn't even notice it.