High Court Hits New Low

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(I know, I said I might take today off because I have stuff to do. But then the Supreme Court pissed me off, so here we are, with a special edition. Wuxtry and also wuxtry. Your regular TFN will be back on Monday!)

The Supreme Court yesterday discussed presidential immunity for almost three hours. The Justice Department over the decades has issued lengthy memos on the subject. As you probably read or saw many pundits and scholars opine yesterday, there’s so much to say because it’s complicated. And why is it so complicated?

My dear, tender, traumatized Newsfuckers, it’s complicated for the same reason most things are complicated: Someone complicated it. Hoping to conceal its awfulness. Like “reforming” financial regulations.

If it were in the Constitution, they’d quote the one line saying so. It’s not, so they can’t.

The entire concept of presidential immunity is roaring, soaring, steaming, screaming, howling, galloping, reeking, flaming, home-brewed, fresh-squeezed, locally sourced, dolphin-safe, artisanal goatshit served on a hand-crafted platter of fine-hammered silver encrusted with blood diamonds and finally inlaid with motherfucker of pearl.

Presidential immunity is a made-up concept. It’s complicated for the same reason you bullshat your way through that school paper or presentation that you didn’t do the work for: To obscure its bullshit DNA. But presidential immunity wasn’t made up yesterday.

This vile, fundamentally un-American concept was sired and nurtured over the years by both parties, in Democratic and Republican administrations alike. I mean, not exactly alike, obvi.

But, because we all know that life begins at male orgasm, let’s start with some of the earliest seeds of presidential immunity and its closely related cousin, expansive executive power. Because yesterday we saw the ultrasound of what you get when these two cousins finally act on that hot, unconstitutional longing and fuck each other.

The founders actually got it right. People back then knew how to do basic thinking because they learned it in Ye Olde Studie of Rhetoricſ. or whatever. They knew how to think so long ago that people then still believed thinking happens in the spleen and the brain was where demons lived.

So, much like today’s alleged, when-its-convenient skeptics of big government, the founders actually abjured executive power. Pres. George Washington declined entreaties to become king. He chose to step down after two terms. Even as non-president he declared torture off-limits for the U.S. military at a time when no one knew whether there would be a U.S. and when Washington wasn’t afraid of impeachment, he was afraid that British soldiers would feed his horse nuts: His.

Later, Pres. Abraham Lincoln fucked up by suspending habeas corpus. Various presidents abused their power to ensure we always had at least one war. But things hit a new low with FDR, who tried to pack the Supreme Court and also shattered Washington’s two-term precedent.

And that gave us the 22nd amendment, limiting presidents to two terms. And the very concept of term limits alone undoes any claim of presidential immunity. 

You may have heard a lot of babies yesterday mewling that, oh, noes, a criminal trial might distract a president from their super-important work of keeping us safe from Russian President Vladimir Putin and other minions of Satan. Well, guess what, the 22nd amendment enshrines in the Constitution the fact that the president can not only be distracted from his work but bodily removed from it for the immoveable, non-negotiable reason that their fucking time is up.

The 22nd amendment doesn’t give a shit whether America is seconds away from a rainfall of Belgian nukes; on Jan. 20 the president still has to leave. If the calendar can end a presidency, so can a criminal court. 

Plus, if the crafters of the 22nd amendment even glimpsed the concept of presidential immunity twinkling in the eye of a young Robert Bork, they would’ve said in the amendment that, yes, the president, too, must obey the Constitution and U.S. law. Because if presidential immunity were a real thing, term limits wouldn’t be — unless you eliminated immunity at the same time, to ensure the term limits held. They didn’t eliminate immunity because it didn’t exist. Yet. 

But then the existential threat of World War II and Russian nukes collectively traumatized us so thoroughly that we elevated the presidency even higher, with all kinds of power-signaling protocols and special-ness affirmations:

We as a nation were so fucked up we decided to give each president a super-secret mystery box they could use to destroy the world and then gave the box a nickname based on a game.

Presidents began having wars without the constitutionally required congressional approval. I’ve got a fucking planet-killing box, you representational Jamokes, you think I need a permission slip for a REGIONAL conflict of ordinary guns and missiles?!?

Fittingly, putting this all down in writing and passing it off as a legal reality fell to the most criminal presidential administration yet to be found in the animal kingdom.

In 1973, while Pres. Richard Nixon and Vice President Spiro Agnew were out casing a bank or setting fire to an orphanage, the Justice [sic] Department was writing. Fiction, that is. Authoritarian fanfic porn, as it happens.

This gave us the now-notorious authoritarian bodice-ripper from the DOJ’s Office of Legal Counsel (OLC) seductively titled, “Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution while in Office.”

One quick example of how poor the reasoning is here. The memo addresses whether a president can be prosecuted while in office, considering that the statute of limitations could run out, creating “a complete hiatus in criminal liability.” What genius logic does the OLC use to overcome this problem?

“We doubt, however, that this gap in the law is sufficient to overcome the arguments against subjecting a President to indictment and criminal trial while in office.”

They doubt it! Well, there ya have it! Case closed! “We doubt” is legalese for “I got nothin’.” Which is not an actual argument. And then, of course, Pres. Gerald Ford pushed us further toward immunity in the guise of unity, pardoning Nixon for his crimes. Which he wouldn’t have had to do if presidential immunity were a thing.

Then Pres. Bill Clinton’s OLC refined this not-argument, making up an incrementalist distinction between civil and criminal “amenability,” arguing establishing as fact that criminal liability was off the table because a criminal sentence “would make it physically impossible for the President to carry out his duties.”

Well, guess what? So would a flesh-heating virus! Or putting one’s penis in a mouth where it did not belong. And no matter what makes it physically impossible for a president to carry out their duties, there’s an amendment for that. When presidents can’t carry out their duties because they’re convicted for their vices, a vice president who can step in. Because presidents aren’t magical.

Even better, the Clinton OLC argued that “the mental and physical burdens of assisting in preparation of a defense … might severely hamper the President’s performance.”

Y’know who else might be hampered by the burdens of prepping a criminal defense? All other people.

If voting illegally — because you believed election officials — can land a civilian in prison for five years, even though this will severely hamper destroy their life and the lives of their family, then the guy who has more resources and power than Thanos can obviously be held accountable for knowing, willful violations of the law.

And y’know how we know that presidents and former presidents can be prosecuted without the country blowing up? Because other, more-democratic countries already do it. Israeli Prime Minister Benjamin Netanyahu is facing trial on corruption charges! He’s so not-immune to criminal prosecution he’s waging an entire war to delay it!

And it’s not just the OLC’s “reasoning” around presidential immunity that’s made up. So is the legal authority of the office doing the alleged “reasoning.” The OLC has no authority to create law or even binding legal principles. It advises the Justice Department. Full stop.

Imagine if your mayor decreed they were above the law because the cops they appointed said they looked into and thought really hard about it but decided they can’t arrest the mayor. That’s the OLC. And even if the OLC or the DOJ itself truly were independent of the White House, they still don’t get to write the laws. Why not? Because that’s also not in the Constitution. 

The OLC’s purpose is basically to advise DOJ about what is and isn’t likely to be okay in the eyes of a court. It’s literally an Office of Guessing About Shit.

And the distinction between official and personal acts? Also bullshit. This claim that there’s a distinction arises from the only article of the Constitution written entirely in Invisible Ink. Here, watch me demolish this distinction in way less time than it took the Supreme Court to pretend it’s real:

“I, President T. Fucking News, hereby issue as my first official presidential act an executive order establishing that all my private acts throughout all of space and time shall be considered as a matter of law and custom and viral videos to be official acts, including all my dirty private business. Now, let’s burn a witch.”

All of these made-up arguments not only came from a made-up office with made-up authority, they came from the administrations of two presidents actively engaged in criming. (Sorry, Clinton fans, perjury is a crime.)

The moral standing of these memos is no better than if they’d been issued about the Godfather by his Office of Legal Consigliere.

And yet, the administration of President Barack Obama made things worse, opting not even to investigate, let alone prosecute:

• the torture of suspects denied basic due process,

• the officials, e.g., Presidents George W. Bush and Dick Cheney, who authorized torture, or

• the further authoritarian OLC leap of declaring that Bush and Cheney could authorize it.

Obama politicized the Justice Department by declaring it would look forward, even though that’s not where crimes are. And even though this abandonment of norms and principles was precisely, fundamentally, the purpose Osama bin Laden had in mind as his best-case scenario for our response to 9/11.

Case in point: D4FRFP¹ Donald Trump attorney D. John Sauer argued yesterday that if presidents didn’t have broad immunity, then-Pres. Bush could’ve been prosecuted for “allegedly lying to Congress to induce war in Iraq.” Ya fuckin’ think?

Pass me the smelling salts, Marge, that would’ve been terrible! 

Imagine if Bush had had to fear prosecution for what he did as president: We might not have lost 4,400+ U.S. servicemembers. Or 100,000+ Iraqis. Or however many veterans have killed themselves as of this morning.

No, Sauer argued, this way our presidents won’t have to fear lying us into yet another war.

Bin Laden understood that fear and cowardice and ahistoricity would push us into the arms of authoritarianism, even if that push came from the safe-seeming, innocuous quarters of the OLC in the form of anodyne-sounding, pretending-to-be-non-bullshit memos.

And they are now a foundation for the deliberations of a Supreme Court openly uninterested in norms, rules, and precedent. Some of these justices are veterans of Bush v. Gore, the last time the Supreme Court stole a presidency. Justice Neil Gorsuch is literally the walking, talking reward Republicans got for stealing a seat on the bench. Justice Clarence Thomas heard the case yesterday despite the conflict of interest made manifest by his wife’s activism on Trump’s behalf.

The same conservatives who blame crazy undergrads from radical colleges for inventing the woke concept that a man can be a woman are now inventing the infinitely more radical concept that a president can be a king.

Even in yesterday’s oral arguments, several justices spoke openly of defying their constitutional limits, as Dennis Aftergut wrote for Salon. Both the Constitution and the Supreme Court’s own website explicitly state that the court shall limit its reasoning and rulings to the cases before it, and not anticipate potential future scenarios. And yet:

• Gorsuch: “We’re writing a decision for the ages.”

• Justice Brett Kavanaugh: “I’m not concerned about the here and now, I’m more concerned about the future.”

• Justice Samuel Alito: “I don’t want to dispute…the particular facts,” but the “abstract.”

These “creative” legal arguments are what you get from educations in the law that reward and nurture “creative” legal thinking rather than robust defense of legal, moral, and historical principle. The function of “prestigious” law schools is not to foster greatness but to teach the kind of wiliness capable of helping rich people steal from us.

It’s worth reflecting on the fact that yesterday’s terrible, ahistoric, fact-free, unsound, just plain dumb legal brilliance was the product of just three institutions of higher learning:

• Harvard Law School: Gorsuch, Chief Justice John Roberts

• Notre Dame Law School: Amy Coney Barrett

• Yale Law School: Alito, Kavanaugh, Thomas

(In fairness, Harvard also gave us Justices Ketanji Brown Jackson and Elena Kagan, and Justice Sonia Sotomayor got her law degree from Yale. But it’s still insane that the entire Supreme Court comes from just three schools, and that even a single alum of Harvard or Yale law schools learned sufficient legal “creativity” to question whether laws apply to everyone.)

Now, is it fair to argue that yesterday’s judicial questioning might have been devil’s advocacy? Yes, absolutely. (On the flip side, it’s a big problem if even a single Supreme Court is literally advocating for Satan. Or Jesus.)

And it’s also true that a lot of legal big brains think the Supreme Court is not likely to hand down a maximalist ruling. They might not birth from their foreheads, Athena-like, a new, sweeping presidential immunity for every crime from double-parking to nuking Maggie Haberman’s house.

But authoritarian presidential power has always been an incrementalist project. You boil the apocryphal frog of democracy and democratic norms slowly, over decades. And what the right-wing justices flirted with yesterday might turn out to be one of the biggest increments in our history, one big enough to let the next president finish the job.

Delay of Shame

The most expected outcome is that special counsel Jack Smith’s trial of D4FRFP Donald Trump on charges of trying to steal the 2020 election will be delayed until after the 2024 election. I happen to think this might be a good thing. Politically, anyway.

A verdict before Election Day might give people time to adjust to and accept the concept of Trump’s guilt. We might even see sympathy for him for whatever sentence he faces. It could motivate pro-Trump turnout and put Pres. Joe Biden on the defensive for convicting his political rival.

And, of course, if Trump’s somehow acquitted, that scenario could easily put him on a glide path back to the White House.

An unfinished trial, however, raises the prospect for voters that Trump might be convicted after it’s too late to do anything about it. I suspect that may prove a powerful motivator for many voters.

TCB

CORRECTION Due to an editorial error by me, a photo caption in yesterday’s TFN mischaracterized the black liquid running down former New York City Mayor Rudy Giuliani’s face in a notorious 2021 news conference.

TFN mistakenly referred to the liquid as Giuliani’s “future,” when in fact it was his legacy. TFN regrets the error, especially since future presidents will be able to kill me for it.

DAVID SHUSTER My former colleague from TYT and MSNBC, David Shuster, gave The Fucking News a nice shoutout in a video of his yesterday, which you can check out here.

MONDAY A more semi-normal TFN will return Monday. You can also catch me at 5pm on Monday on The Nicole Sandler Show, doing our weekly “Fucking News” segment. You’ll be able to watch/listen here.

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Have a great weekend, and go get ‘em, kids…!

1. D4FRFP = Disgraced, quadicted, fraudster, rapist, former President.