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A five-alarm fire for democracy Judd Legum

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Crowds gather for the “Stop the Steal” rally on January 06, 2021 in Washington, DC. (Photo by Robert Nickelsberg/Getty Images)

On Monday, six members of the Supreme Court granted Donald Trump — and every future president — broad criminal immunity. The court found that, as president, Trump was free to use his “official” powers to commit crimes. Considering the President of the United States is the most powerful position in the world, this is a breathtaking pronouncement. 

Writing in dissent, Justice Sotomayor details the implications:

When [the President of the United States] uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune. 

The Supreme Court invented this new kind of presidential immunity 235 years after the Constitution was ratified. And it lacks any grounding in the Constitution’s text. Instead, Chief Justice Roberts, writing for the majority, cites the need for the president to take “bold and unhesitating action” without “undue caution.”

Justice Sotomayor explains that the Constitution contains provisions granting various forms of criminal immunity to federal officials. But the President of the United States was not included:

The Framers clearly knew how to provide for immunity from prosecution. They did provide a narrow immunity for legislators in the Speech or Debate Clause. See Art. I, §6, cl. 1 (“Senators and Representatives . . . shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place”). They did not extend the same or similar immunity to Presidents. 

Indeed, the Constitution specifically contemplates the criminal prosecution of a former President. The Constitution states that even after a President is impeached, convicted, and removed from office, the former President “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Trump’s own lawyers, during his second impeachment trial, argued that Senators should not convict him because if there was evidence supporting wrongdoing, Trump could be criminally prosecuted for the events of January 6 after leaving office.  

In Federalist No. 69, Alexander Hamilton wrote that the President would be “liable to prosecution and punishment in the ordinary course of law.” This, Hamilton wrote is the key distinction between the “King of England,” who was “sacred and invulnerable,” and the “President of the United States.” 

Giving Trump everything he wants

The majority attempts to frame its decision as a compromise, because it states that former Presidents do not have immunity for unofficial acts. But that was the position of Trump’s own lawyers. So it is hardly a concession. 

It also creates a very narrow definition of “unofficial” acts. The President is acting in an official capacity as long as the President’s actions are “not manifestly or palpably beyond [his] authority.” Further, when making that evaluation as to whether an action is official or unofficial “courts may not inquire into the President’s motives.” That’s why, if the President accepts $10,000,000 to issue a pardon, the President cannot be prosecuted criminally for issuing the pardon because the President’s “motive” for the pardon, an official act, is off limits. 

The majority then states that when the President’s actions fall within the office’s “conclusive and preclusive” authority — powers that stem directly from the Constitution or legislation — the President has absolute immunity. The majority uses this standard to declare “Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials,” which is part of the federal indictment against Trump related to January 6. Notably, the majority does not state what, if any, of Trump’s actions that form the basis of the criminal charges are unofficial acts.

The heart of the majority decision is that, for all other official acts, the President has “at least presumptive immunity.” The majority finds the President is immune unless “the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.'” As Justice Sotomayor notes in the dissent, however, “it is hard to imagine a criminal prosecution for a President’s official acts that would pose no dangers of intrusion on Presidential authority in the majority’s eyes.” The majority decision, in fact, explains at length why criminally prosecuting Trump for pressuring former Vice President Pence to overturn the legitimate results of the election and install Trump for a second term may be an “intrusion on Presidential authority”:

[T]he President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress. When the Senate is closely divided, for instance, the Vice President’s tiebreaking vote may be crucial for confirming the President’s nominees and passing laws that align with the President’s policies. Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions.

As if that were not sufficient, the majority also reserves the right to scrap the idea of a “presumption” of immunity and just declare that the President is immune from criminal prosecution for all official acts at some future date.

Justice Sotomayor sums up the impact of the majority decision: “Today’s court…has replaced a presumption of equality before the law with a presumption that the President is above the law for all of his official acts.” 

What happens now to Trump’s case — and the nation

The majority’s decision does not end the criminal case against Trump related to his actions on and around January 6, 2021. But the case is on life support. The Supreme Court remanded the case back to the district court to apply the decision and determine whether any of the charges against Trump survive. 

If the district court finds that some of the criminal charges against Trump can proceed, Trump can appeal and eventually find his way back to the Supreme Court. At a minimum, this will delay any potential trial far beyond the 2024 election. 

If Trump wins the election, he can direct the Justice Department to drop the case. And even if Trump loses the election, is a majority of the Supreme Court prepared to say that Trump should be tried for any of his conduct related to January 6, 2021? At this point, it seems doubtful.

But the implications for Trump’s criminal prosecution pale in comparison to the longterm impact on the nation. “The Court has now declared for the first time in history that the most powerful official in the United States can… become a law unto himself,” Justice Ketanji Jackson wrote in a separate dissent. “Presidents alone are now free to commit crimes when they are on the job, while all other Americans must follow the law in all aspects of their lives, whether personal or professional.” 

 

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When a President Drops Out: What Biden Can Learn from 1968 Bari Weiss

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On our nation’s 248th birthday, Joe Biden faces the wrath of a thousand pundits. The whole world watched the elected leader of the world’s oldest republic befogged, slack-jawed, and mentally vacant in a debate he had to win. A recent poll from CBS showed that after Biden’s performance last week, 72 percent of registered voters believed the man lacked the cognitive ability to be president. 

Even his closest friends and sycophants are pleading for the old man to hang it up. The New York Times editorial board. Former advisers to Barack Obama. Columnist and Biden’s personal friend, Tom Friedman, said he wept in a hotel room in Portugal while watching the debate. They’ve seen enough. Joe Biden, for the good of your country, step down. 

And yet, Biden’s White House is shrugging it off. It was just a debate, they tell us. Don’t let 90 minutes define years of accomplishments. 

But it was not just a debate. It was indelible and undeniable proof that the leader of the free world lacks the stamina and acuity to do the job for four more months, let alone four more years. 

As Biden weighs his decision, he may well think back to when he was a young man and then-president Lyndon Baines Johnson found himself in a similar position. Johnson was losing the country, and in the middle of the primary he decided to bow out. 

Today, Free Press writer Eli Lake hosts a special episode about what happened in 1968 when President Johnson decided he was not fit for reapplying for his job. He listened to his critics and backed away from the White House, allowing the Democrats an opportunity to stage an open convention to choose their next candidate for the presidency. But why did the party want him gone so badly? And how did this seismic decision work out? It’s a tale of murder, war, and riots that culminated in the most explosive convention in the history of America.

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Pirates, Presidents, and Patriotism Oliver Wiseman

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(Photo By MediaNews Group/Reading Eagle via Getty Images)

Happy Fourth of July, Free Pressers. There’s a lot going on for what is supposed to be a national holiday. Is the president about to resign? Is his VP up to the job? What can Joe Biden learn from 1968? Is the UK a serious country? All that and more in today’s Front Page from The Free Press.

But first, something for those of you who’d prefer to mark America’s 248th birthday with something completely unrelated to the fast-moving circus in Washington. For his new book, The Year of Living Constitutionally, A.J. Jacobs set about sticking to the most literal interpretation of the Constitution for 12 months. He exercised his right to bear an eighteenth-century musket on the streets of New York. He quartered soldiers in his apartment, much to his wife’s consternation. 

A.J. Jacobs on the streets of New York City. (Courtesy of the author)

And—as he describes in his piece for us today—he petitioned Congress to become a state-sanctioned pirate, or “privateer,” with permission to detain enemy ships. According to Article I, Section 8 of the Constitution, Congress has the power to grant citizens “letters of marque and reprisal.” Meaning that, with Congress’s permission, private citizens can load weapons onto their fishing boats, head out to the high seas, capture enemy vessels, and keep the booty. Back in the day, these patriotic pirates were known as “privateers.” And, as A.J. notes, privateers were the unsung heroes of the revolution—so we probably wouldn’t celebrate today without them. Read on, me hearties, for A.J.’s delightful piece “Your Constitutional Right to Be a Pirate.

Wednesday was Kamala Harris’s day. As speculation about the president’s future grew—fueled by a meeting with Democratic governors and fresh reporting, furiously denied by the White House, that Biden had discussed dropping out with a close ally—all eyes were on Harris. The world wondered: Is the plot of Veep about to come true? Polling showed her within “striking distance” of Trump. The Trump campaign referred to her as “Cackling Copilot Kamala.” “IT’S HER PARTY NOW,” read the banner headline on Drudge. 

Meanwhile, the Biden camp is desperately trying to tamp down the speculation about the president’s future. “I am running,” Biden reportedly said on a staff call Wednesday. “No one’s pushing me out. I’m not leaving.” Pooh-poohing the “draft Kamala” idea, Democratic adviser Dmitri Mehlhorn reportedly told donors that “Kamala Harris is more threatening to those swing voters than a dead Joe Biden or a comatose Joe Biden.”   

Biden and Harris will be together at the White House for Fourth of July celebrations later today. And while outwardly Harris is staying loyal, the Washington rumor mill is in overdrive. Fueling all that gossip are these questions: Is Joe Biden really the Democrats’ problem? And would his departure from the race really help their chances of beating Donald Trump? 

That’s the subject of today’s Fight Club between Joe Nocera and Eli Lake. Joe says yes, Biden is the problem and needs to go. Eli says the damage is already done. 

Click here to read the debate on the only story we can think about right now. 

Conservative writer Michael Brendan Dougherty is, last time I checked, not a member of the KHive, but he argues that now is the time for Kamala Harris to be president. She was duly elected as vice president and the president has shown he is not fit for the office. So, what should happen next is simple—or should be. (National Review

On the center-left, Mark Leibovich isn’t pulling his punches in a piece on the Democrats sticking with Biden: “Since President Joe Biden’s debate debacle on Thursday, I’ve learned two things for sure: first, that Republicans are not the only party being led by a geriatric egotist who puts himself before the country. And second, that Republicans are not the only party whose putative leaders have a toxic lemming mindset and are willing to lead American democracy off a cliff.” (The Atlantic

Joe’s got to go, says Netflix co-founder Reed Hastings. He is one of the biggest Democratic donors in the growing group that wants the president to announce he isn’t running. (Variety

Does our choice in this election suggest an empire in decline? Not in the slightest, argues venture capitalist Packy McCormick. “Accelerated progress despite government and institutional stagnation is exactly what makes America exceptional,” he writes, heralding the start of the American Millennium. (Not Boring)

A throwback worthy of Independence Day: the late, great A.A. Gill’s spectacular essay, “America the Marvelous,” in which the author—a Brit of refined taste—argues with characteristic aplomb that “America is Europe’s finest invention.” (Vanity Fair)

Most of us understand the Supreme Court to be divided 6–3, with conservatives in the majority. But according to Harvard law professor Noah Feldman, the just-wrapped session makes clear that there are really three groups on the court: the liberals (Kagan, Sotomayor, and Brown Jackson); the “centrist conservatives” (Roberts, Kavanaugh, and Coney Barrett); and the “arch conservatives” (Thomas, Alito, Gorsuch). (Bloomberg)

Whichever camp you sympathize with most, let’s get behind Dilan Esper’s suggestion: justices should spend less time grandstanding in dissenting or concurring opinions and more time deciding cases. Idea: speed things up by giving them all anonymous Twitter accounts to vent on. (Dilan’s Newsletter

Is France safe for the Jews? Not according to Grande Synagogue of Paris Chief Rabbi Moshe Sebbag, who told The Jerusalem Post: “I tell everyone who is young to go to Israel or a more secure country.” The U.S. hasn’t seemed to fit that description lately, but David Wolpe, emeritus rabbi of Sinai Temple in Los Angeles, hasn’t given up on America. In a new essay, he writes of the people of “good heart and good will, of soulfulness and love, all over this great nation.” (WSJ)

Today is the first Fourth of July in 23 years when neither of the world’s two greatest competitive eaters, Takeru Kobayashi and Joey Chestnut, will feature in the Nathan’s Hot Dog Eating Contest. Instead, they will face off live in a Netflix special on Labor Day. Is nothing sacred? (ESPN

Related: McDonald’s USA president Joe Erlinger admitted the company was “not successful” with the McPlant burger. Consumers weren’t loving it, and it seems the company has no plans to bring the patties back. The red-blooded American loves meat. Who knew! (Food & Wine)

When a President Drops Out: What Biden Can Learn from 1968

On our nation’s 248th birthday, Joe Biden faces the wrath of a thousand pundits. The whole world watched the elected leader of the world’s oldest republic befogged, slack-jawed, and mentally vacant in a debate he had to win. A recent poll from CBS showed that after Biden’s performance last week, 72 percent of registered voters believed the man lacked the cognitive ability to be president. 

Even his closest friends and sycophants—the New York Times editorial board, former advisers to Barack Obama—are pleading for the old man to hang it up. Columnist and Biden’s personal friend, Tom Friedman, said he wept in a hotel room in Portugal while watching the debate. They had seen enough. 

And yet, Biden’s White House is shrugging it off. It was just a debate, they tell us. Don’t let 90 minutes define years of accomplishments. 

As Biden privately weighs his decision, he may well think back to when he was 25 years old and then-president Lyndon Baines Johnson found himself in a similar position. LBJ was losing the country amid the turmoil of the Vietnam War, and in the middle of the primary, he decided to bow out. 

Today, Free Press writer Eli Lake hosts a special episode of Honestly about what happened in 1968 when President Johnson decided he was not fit to reapply for his job. He listened to his critics and backed away from the White House, allowing the Democrats an opportunity to stage an open convention and choose their next candidate for the presidency. But why did the party want him gone so badly? And how did this seismic decision work out? It’s a tale of murder, war, and riots that culminated in the most explosive convention in the history of America.

Click below to listen, or catch the Honestly episode wherever you get your podcasts: 

→ Three cheers for Britain’s boring, silly election: For you Americans who worry that your country is on a political precipice this Independence Day, I urge you to take heart. Britain, from where I hail, is going through its own meltdown. After 14 years with the Conservatives in charge, the economy has stagnated, the country has torn itself apart over Brexit, and just about everyone is fed up with the status quo. As Britons head to the polls today, my nation is expecting a landslide for Labour.

And yet, almost no one in my country can bring themselves to get excited about Election Day. 

“Why does it feel so boring?” asked a recent headline of the vote. The electorate—or at least those in England—are much more interested in the Euros. England is playing Switzerland in the quarterfinals, though thankfully not on polling day but two days later. 

And for anyone who is sick of both Biden and Trump, take heart from soon-to-be former British prime minister Rishi Sunak and his woeful attempts at damage control. Sunak isn’t what we’d call a natural politician. In fact, he makes Kamala Harris look like Bill Clinton. Here he is telling some schoolkids that he’s “a total coke addict.” And when poor Rishi announced an election in the middle of a massive downpour, the country’s headline writers had a field day (Drowning Street, Drown and Out, you get the gist). The next day, the prime minister visited Belfast’s Titanic Quarter, once again making the headline writers’ jobs very easy. The list of Sunak’s screwups goes on. . .  there’s the attempt by the PM, who is estimated to be worth $800 million, to earn sympathy by telling voters that he didn’t have premium cable TV growing up. There’s the failed photo opportunity where he and foreign minister David Cameron tried to herd some sheep, only for the creatures to flee. And there’s this rather unfortunate daytime TV situation the prime minister found himself in on the eve of the election: 

Other leaders have leaned into the absurdity of it all. The Liberal Democrat leader Ed Davey has pursued a strategy of humiliating himself over and over again in a bid for attention (or “unearned media,” as the pros say). In recent weeks, he’s fallen off a paddleboard, ripped down a slip and slide, jumped in a lake, tripped over a tire, hula-hooped, Zumba’d, fallen off another paddleboard, and bungee jumped. That last stunt was, he said, a way to encourage voters to take a “leap of faith” with him and his party. 

The lesson in all this? No amount of hijinks will move Britain’s stiff upper lip. They’d rather elect Keir Starmer, a former lawyer whose voice will put you to sleep. Maybe that’s what we need right now, but I’ll miss “total coke addict” Rishi Sunak and his rendezvous with “Britain’s most tattooed mum.”

→ Antisemitism in the group chat: Ever since October 8, when thousands of university students and professors sided with Hamas instead of innocent Israeli civilians, we at The Free Press have pointed out the double standard applied on elite campuses across America. Institutions supposedly committed to “safety first,” that call misgendering a form of “abuse” that “perpetuates violence,” have allowed its students to openly call for the death of Jews in their quads. 

The people running the campuses don’t think much differently than their students do—especially at my alma mater, Columbia University. We already knew about some of this. During a panel on Jewish life on May 31, Susan Chang-Kim, vice dean and chief administrative officer, texted colleagues that the concerns about antisemitism were “difficult to listen to” and sent vomit emojis in reaction to an op-ed on campus antisemitism by the school’s rabbi. 

The more we learn, the worse it gets. 

Yesterday, the House Committee on Education and the Workforce released new messages from Chang-Kim and other high-level Columbia administrators. First reported by The Washington Free Beacon, they are even more damning than the first batch

As Orly Mishan—daughter of a Holocaust survivor—described her own daughter, a Columbia sophomore, “hiding in plain sight” on campus, Chang-Kim wrote “I’m going to throw up.” “Amazing what can do,” Cristen Kromm, the dean of undergraduate student life, wrote in response. 

As Brian Cohen, the head of Columbia Hillel, said that Jewish students felt safer at Hillel than in their dorms, Matthew Patashnick, associate dean for student and family support, wrote to his fellow admins, “They will have their own dorm soon.” Minutes later, Chang-Kim wrote, “Comes from such a place of privilege.” Mind you, this is the same Hillel that Jewish students could not leave because of the violent protests outside its doors. 

Cohen spoke in hopes of providing more support services to Jewish students, to which Kromm texted, “If only every identity community had these resources and support.” And of course, Patashnick accused Cohen of taking “full advantage of this moment” for its “huge fundraising potential.” 

So I repeat what I said in a Free Press video in December: Safety first, except for Jews

Many people are shocked by these texts. I am not. Many are thrilled to hear that the administrators have been placed on leave. I am not. I saw this rot as a student there until I graduated early last year to work at The Free Press. I was told that I was crazy for sounding the alarm on smaller instances of antisemitism (nothing too crazy, just some swastikas on dorm room doors). 

We sometimes fail to remember that people comprise institutions. Columbia is not a bastion of truth-seeking and free thought overseen by benign, mysterious forces. Nope, power gets exerted by a grubby group chat whose members think that concerns about antisemitism come from a place of privilege. 

And these are the just the ones who were dumb enough to get caught. Their texts are a small window into a much deeper, much uglier rot. —Maya Sulkin 

Oliver Wiseman is a writer and editor for The Free Press. Follow him on X @ollywiseman

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July 3, 2024 Heather Cox Richardson

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