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The lawless presidency Judd Legum
In Federalist No. 69, Alexander Hamilton explains the key difference between the “king of Great Britain” and the “President of the United States.” A king, Hamilton explains, is “sacred and inviolable” and “there is no constitutional tribunal to which he is amenable.” As a result, “no punishment to which he can be subjected without involving the crisis of a national revolution.” The President of the United States, in contrast, can be “impeached” and “removed from office.” Further, the President of the United States, after leaving office, is “liable to prosecution and punishment in the ordinary course of law.”
This has been the common understanding for more than 200 years. That is why after President Richard Nixon resigned amid evidence of criminal conduct, he accepted a pardon from President Gerald Ford.
But Donald Trump, the prohibitive favorite to be the Republican Presidential nominee for a third time, has a radically different perspective. Trump is facing 91 felony counts for a variety of conduct, including the mishandling of national defense information, conspiracy to defraud the United States, and falsifying business records. Trump, in increasingly strident language, argues that he should have absolute immunity for any crimes he committed as President.
At a campaign rally in New Hampshire on Saturday, Trump argued that “[you] have to give a President full and total immunity.” Otherwise, the President will be “unable to act” because “the opposing party will indict them for anything they do.” Trump acknowledged that a “rogue” President — a “bad apple” — could take advantage of the situation. But, Trump claimed, “there is nothing you can do about it.” A President, Trump says, has to be able to do what he believes “is the absolute right thing,” regardless of whether it is a crime.
In a January 18 post on Truth Social, Trump made a similar argument, claiming that Presidents need immunity even for actions that “cross the line.” Trump said, “Presidents must have complete and total Presidential immunity, or the authority and decisiveness of a President of the United States will be stripped and gone forever.”
The implications of Trump’s argument are clear. Trump is asserting that, if he wins the 2024 election, he has the absolute right to do whatever he wants. There will be no legal restraints to his conduct and no consequences. As Hamilton noted in 1788, that is how dictatorships function.
Could President Trump order the assassination of a political opponent?
Trump’s attorneys are arguing that the felony charges against Trump related to his efforts to overturn the 2020 election should be dismissed on the basis of Presidential immunity. But, unlike Trump, his attorneys cannot argue that Presidents enjoy absolute immunity from all criminal prosecution. Why? Because Article 1, Section 3 of the Constitution acknowledges that Presidents can be criminally prosecuted:
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.
The Constitution says that even if a President is impeached, the President can still be criminally prosecuted afterward. Trump’s attorneys have turned this argument on its head, arguing that a President can only be criminally prosecuted if they are impeached for the exact same conduct first.
During oral arguments this month at the U.S. Court of Appeals for the District of Columbia Circuit, Judge Florence Pan asked Trump’s attorney: “Could a President who ordered SEAL Team 6 to assassinate a political rival, who was not impeached, would he be subject to criminal prosecution?” Trump’s attorney, D. John Sauer, answered that a President could only be criminally prosecuted for assassinating a political rival if he was impeached and convicted first.
The appeals court appeared skeptical of this argument but has not yet issued a ruling. Whatever the outcome, it is likely to be appealed to the Supreme Court.
How Trump avoided conviction in the Senate
Trump was impeached for his efforts to overturn the 2020 election. But he narrowly avoided conviction in the Senate. During the Senate trial, Trump’s lawyers argued that the Senate should vote to acquit because the matter could be dealt with criminally. David Schoen, one of the lawyers who represented Trump during his second impeachment, argued that a President who is not impeached could “clearly” be charged criminally after leaving office.
This argument is a complete canard. The Constitution expressly provides in article I, section 3, clause 7 that a convicted party, following impeachment, ‘‘shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law’’ [after removal]. Clearly, a former civil officer who is not impeached is subject to the same.
Schoen explicitly said the appropriate venue to consider whether Trump committed a crime was a court:
If my colleagues on this side of the Chamber actually think that President Trump committed a criminal offense…After he is out of office, you go and arrest him… The Department of Justice does know what to do with such people.
These arguments convinced several Republican Senators to vote against impeachment. Senator Mitch McConnell (R-KY), explaining his vote against impeachment, argued that Trump “is still liable for everything he did while he was in office, as an ordinary citizen” because “[w]e have a criminal justice system in this country” and “former Presidents are not immune from being held accountable.” Senator Thom Tillis (R-NC) said, “[a]n impeachment trial is not the best or only way to hold a former elected official accountable for their actions. The ultimate accountability is through our criminal justice system where political passions are checked, and due process is constitutionally mandated. No President is above the law or immune from criminal prosecution, and that includes former President Trump.” According to a brief by Special Prosecutor Jack Smith, at least 31 Republican Senators made similar statements.
A nation of laws
Trump argues that the nation can only function properly if the President has the right to violate the law. But, according to Supreme Court precedent, the opposite is true.
“No man in this country is so high that he is above the law,” Supreme Court Justice Samuel Miller wrote in the 1882 case of United States v. Lee. “No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy and to observe the limitations which it imposes upon the exercise of the authority which it gives.”
In other words, it is essential that a President (or other government official) stop to consider whether their actions are legal. In the 1982 case of Harlow v. Fitzgerald, the majority wrote that
“[w]here an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate.”
Trump is arguing for a new framework that would allow him to do whatever he wants without worrying about consequences. In a recent interview with Sean Hannity, Trump said he would act as a “dictator” on his first day in office. On Saturday, Trump defended those remarks, saying he was just “having fun.”
Trump also praised Hungary’s authoritarian leader, Viktor Orban. “It’s nice to have a strongman running your country,” Trump said.
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December 10, 2024 Heather Cox Richardson
Substacks
The Explosion of Jew-Hate in Canada Terry Glavin
We rarely run pieces this long. But today’s investigation—the story of how antisemitism became deeply embedded in Justin Trudeau’s Canada—called for it. This is a piece worth reading carefully. It is relevant not just to our many Canadian readers, but to anyone invested in the future of the West. —Bari Weiss
‘The Denial Is What’s Painful’
For Sarah Rugheimer, a professor of astronomy at York University in Toronto, the first sign of the virulent strain of antisemitism now embedded in Justin Trudeau’s Canada appeared on a lamppost.
It was a few weeks after the Hamas massacre of last October 7. Rugheimer, 41, was walking in a park near her home in the city’s quiet Cedarvale neighborhood when she saw a poster of the Israeli hostage Elad Katzir, a 47-year-old farmer from Kibbutz Nir Oz, covered with swastikas.
In the days that followed, as the war raged in Gaza, swastikas turned up all over Cedarvale. They also started appearing on the York campus, where Rugheimer serves as the Allan I. Carswell Chair for the Public Understanding of Astronomy. As fall turned to winter, a swastika showed up in the snow outside the campus building where she works.
An astrophysicist with a particular interest in the origins of life on Earth and the possibility of life on other planets, Rugheimer tended to confine her worldly concerns to scientific matters. So the swastikas came as a shock. But worse was to come.
She grew up in Montana, and her academic career took her around the world—from a PhD in astronomy and astrophysics at Harvard University to Scotland, England, and now Canada. But until taking up her post at York University two years ago, Rugheimer said she’d never encountered any overt antisemitism. Nor had she given much thought to her identity as a Zionist: Like the vast majority of Jews around the world, Rugenheimer believes in Israel’s right to exist.
Jew-hatred was a phenomenon of the fringes, she reckoned. “It wasn’t on my radar,” she told me. Now, it’s everywhere. “Every week there is a major incident in Canada, and multiple minor ones every day in my neighborhood.”
It was what was happening inside her university that disturbed her the most.
York’s student unions issued a declaration just after the attack calling the barbarism of October 7 a “justified and necessary” act of resistance against settler colonialism, genocide, and apartheid. The student groups found widespread support among York’s professors—some of whom Rugheimer considered friends.
A politics department faculty committee demanded the university enforce a definition of “anti-Palestinian racism” that encompassed any expression of sympathy for the right of Israelis to exist within their own state: “Zionism is a settler colonial project and ethno-religious ideology in service of a system of Western imperialism that upholds global white supremacy.”
She was shocked by the declarations, and the defaced posters, and the swastikas. But for Rugheimer there was something worse. “The denial is what’s painful,” Rugheimer said. The denial of the rapes and savagery of October 7, 2023. The denial of the pervasive antisemitism in “anti-Zionist” polemics. The denial of Jewish history itself. “Reasonable people can disagree about what to do in an intractable conflict, but the denying of what should be uncontroversial facts makes it impossible to have hope.”
This sort of despair has become a feature of everyday life for Jews across Canada who are experiencing open hatred—and yet are living under a government that appears either blind to it, paralyzed by it, or indifferent to it. Law enforcement in Canada is not blind. Quite the opposite. Officers want to do their jobs. What they say is that they lack the moral support from the political class to enforce the law. And that they cannot keep up with the volume of hate crimes—crimes that arise from a widespread ideology that has normalized the idea that “Zionists” anywhere are a fair target for attack.
Perhaps nothing captured Canada’s dark new reality better than a split-screen story from late last month.
On November 22 in Montreal, at the 70th annual session of the NATO parliamentary assembly, rioters organized by the organizations Divest for Palestine and the Convergence of Anti-Capitalist Struggles wreaked havoc on the city. They ignited smoke bombs, threw metal barriers into the street, and smashed windows of businesses and the convention center where the NATO delegates were meeting. The rioters torched cars. They also burned an effigy of Israeli prime minister Benjamin Netanyahu.
While Montreal burned, Trudeau was dancing and handing out friendship bracelets at a Taylor Swift concert in Toronto. It took 24 hours for him to weigh in with a single tweet.
‘It Was Like a Dam Burst’
The impression that the violence unfolding around them is somehow invisible to the state responsible for their protection has overwhelmed not only relative newcomers to Canada like Rugheimer, but also Jews who have lived in Canada for decades. People like Robert Krell, 84, the former director of postgraduate education in the Department of Psychiatry at the University of British Columbia.
A pioneer of Holocaust education in Canada and a specialist in survivor trauma, Krell immigrated to Canada at the age of 11, after having been hidden by a Catholic family during the Nazi occupation of Holland. Krell was not as shocked by the unspeakable barbarism of the Hamas massacre of October 7 last year as by the jubilation the atrocities elicited from within the “progressive” milieu across Canada—and by the total silence from the “social justice” scene.
On Sunday, October 8, activists affiliated with the terrorist-designated Popular Front for the Liberation of Palestine were already shouting their happiness into megaphones to a crowd at the steps of the Vancouver Art Gallery, only a few minutes’ drive from Krell’s home. “We are calling on those in so-called Vancouver to uplift and honor the resistance,” they said. “Show solidarity and celebrate the steps towards liberation!”
Scenes like these repeated themselves in cities across Canada—all the way to St. John’s, Newfoundland.
“On October 7 I was horrified,” Krell told me. “I was shocked to the core by the cruelty, the rapes, the mutilations, the killing of children, the gouging of eyes . . . but I could believe it.”
What he found impossible to fathom was what he saw on October 8, and in all the days that followed.
“It was like a dam burst. I can’t describe the emotional blow. I guess I thought there would be a cry of outrage about what happened, you know, from the human rights people, Black Lives Matter people, the MeToo people. I shouldn’t have been surprised, but I just couldn’t grasp the concept, that when people heard and saw what had been done to those Jews, there was nothing except celebrations of Hamas as liberators.”
Americans are familiar with the pattern that has been repeated at dozens of Canadian university and college campuses—the “pro-Palestinian” occupations, encampments, manifestos, disturbances, and explicit celebrations of the October 7 “resistance.” In Canada, however, the sociopathology that shocked Rugheimer and Krell is by no means confined to the extremes of campus politics or the rantings of far-left activist groups.
Rather than discovering how torn the fabric of their society has become, Canadian Jews are being forced to come to terms with just how deeply antisemitism has been woven into it.
This is not a matter of anecdote or impression.
Last month, a report by Israel’s Ministry for Diaspora Affairs and Combating Antisemitism found a 670 percent increase in antisemitic incidents in Canada since October 7, 2023, including “violent attacks such as shootings targeting Jewish institutions and arson attacks targeting schools, synagogues, and other community institutions.” There are about 40 million Canadians and roughly 350,000 of them are Jewish—representing less than 1 percent of the country’s population.
“Most Canadian Jews feel unsafe and victimized,” the University of Toronto sociologist Robert Brym concluded in an in-depth attitudinal survey of Canadians, undertaken in collaboration with EKOS Research, published earlier this year. “They perceive a rise in negative attitudes toward Jews in recent months and years. Most doubt the situation will improve.”
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5 facts Elon Musk should learn about homelessness Judd Legum
Elon Musk, the world’s richest man, has been appointed by President-elect Donald Trump as the co-chair of the Department of Government Efficiency (DOGE). Despite its name, DOGE is not a department or part of the federal government. But it appears that Trump will look to Musk and DOGE to determine what government programs are essential and what should be eliminated as unnecessary.
So it is notable that, on Tuesday, Musk posted on X that homelessness is a “lie” and a “propaganda word.” He suggested that most unhoused people are “violent drug addicts” who cannot be helped.
Musk was commenting favorably on a post that claimed providing shelter to unhoused people was counterproductive. The post ostensibly cited a San Francisco Chronicle article published in April 2022. The article does not support the contention that providing shelter to people who need it is fruitless or that all unhoused people are criminals. Rather, the article details how the converted hotels in San Francisco were “underfunded and understaffed,” leading to substandard living conditions. The city outsourced the management of the buildings to non-profit groups, but failed to provide any oversight. The safety issues resulted from inadequate maintenance and “a small group of tenants who do not receive the support they need.”
If Musk is going to advise the president on government spending, he should educate himself on the reality of homelessness. These are five key facts to get started.
17% of unhoused people are children
A reality that Musk did not mention in his post is that a significant percentage of unhoused people are children. According to the 2023 report by the U.S. Department of Housing and Urban Development (HUD), on a single night in 2023, “roughly 186,100 people” or almost “three of every 10 people experiencing homelessness” was “part of a family with children.” The same report found that in a single night in 2023, 17 percent of unhoused people were children under the age of 18, amounting to 111,620 unhoused children.
According to data from the National Center for Homeless Education, during the 2021-22 school year, “[n]early 1.2 million children were either literally homeless (living in a shelter, or in unsheltered locations such as a car or tent) or doubled-up (sharing housing with friends or family beyond a unit’s designated capacity)” nationwide. Studies have found that unhoused children are at greater risk for health conditions, including respiratory infections and asthma, and developmental delays.
Tens of thousands of unhoused people are veterans
Veterans also make up a significant portion of unhoused people. According to the HUD’s 2023 report, on a single night in 2023, “35,574 veterans were experiencing homelessness,” or “22 of every 10,000 veterans in the United States.” But, according to the report, the “actual number of veterans experiencing unsheltered homelessness could be larger than reported.” Black veterans were disproportionately affected, and “comprised 36 percent of veterans experiencing sheltered homelessness and 25 percent of veterans experiencing unsheltered homelessness,” despite making up “only 12 percent of all U.S. veterans.”
Veterans experience homelessness at a higher rate due to multiple factors. Frequent and extended deployment can make finding and maintaining stable, affordable housing more difficult. A large number of veterans also live with post-traumatic stress disorder (PTSD) and struggle with substance abuse. According to the National Coalition for Homeless Veterans, 70 percent of unhoused veterans have problems with substance abuse. Veterans can also be “at a disadvantage when competing for employment,” as specific military work and training do not always translate to civilian employment.
Unhoused people are much more likely to be crime victims than perpetrators
In Musk’s post, he calls unhoused people “violent.” But, in reality, unhoused people are more likely to be a victim of a violent crime than to commit a violent crime. According to the Washington State Department of Commerce, an unhoused person “is no more likely to be a criminal than a housed person,” with the exception of camping ordinances, as unhoused people “break that law merely by being homeless.” In 2023, the New York Times reported that it is “relatively rare” for “homeless, mentally ill people” to commit a violent attack.
According to the Washington State Department of Commerce, unhoused people are in fact “more likely to be the victim of a violent crime,” especially unhoused women, teens, and children. Research found that approximately “14% to 21% of unhoused people are estimated to have been the victim of violence, compared with around 2% of the general population,” ABC News reported.
The false perception pushed by Musk that unhoused people are more violent can lead to stereotyping and dehumanizing of unhoused people, contribute to violence against unhoused people, and hurt efforts to help the unhoused.
Many people lose housing to escape domestic violence
While Musk implies that homelessness is the result of a moral failure by people with a mental illness or substance abuse disorder, the facts show that there are many factors contributing to homelessness that can affect anyone.
One of those factors is domestic violence. Each year, more than 7 million people in the U.S. experience domestic violence and among those people, 500,000 need to find new housing as a result. It can be difficult to accurately track how many victims of domestic violence end up experiencing sheltered homelessness because shelters that exclusively house domestic violence victims do not report information about their clients.
According to HUD, 11 percent of all beds in shelters that do track client information were designated for domestic violence victims in 2022.
Affordable housing is scarce, even for people with jobs
Another factor driving homelessness in the U.S. is a severe shortage of affordable housing.
For people making extremely low wages (either at or below the federal poverty line or 30 percent of their area’s median income), there are only 34 affordable rental options per 100 families in need of housing.
Working full-time, even for higher than minimum wage, is no guarantee that permanent housing will be attainable. In fact, according to a report by the National Low Income Housing Coalition, the average full-time worker would need to make over $32 per hour to afford to rent a modest two-bedroom home or over $26 per hour to afford a one-bedroom.
There is nowhere in the country where a full-time minimum wage worker can afford to rent a two-bedroom home at a regular market rate. Even accounting for states and localities that have set their minimum wage above the federal level, the average minimum wage worker would have to work 113 hours per week to afford a two-bedroom home or 95 hours to afford a one-bedroom home.
A 2021 study from researchers at the University of Chicago found that 53 percent of people experiencing sheltered homelessness (meaning people living in shelters or transitional housing) had some kind of formal employment and 40 percent of people experiencing unsheltered homelessness were employed.
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