Lock Them Up?

Will the Biden administration prosecute lawyers in the Trump Administration?

|The Volokh Conspiracy |

In the past two weeks, there have been two law professor freak-outs. First, the Trump Administration refused to accept new DACA applications. Instantly, the professoriate charged the lawyers in the Trump administration with flouting the Supreme Court's Regents decision, as well as the district courts' injunctions. (How many of these professors carefully parsed the memorandum and the complex litigation history before making these claims?) One professor on a list-serve actually argued that the Trump administration lawyers should be thrown in jail for contempt of court. Of course, none of these claims were true. The Trump Administration merely issued a new policy. And those policies will be challenged anew. No one has been held in contempt. No one is going to jail.

On Friday, President Trump issued a memorandum that provided financial assistance to people affected by COVID-10. He issued another memorandum that deferred payroll taxes till the end of the year. Once again, the professoriate charged that President Trump was flouting the law. (How many of these professors actually checked the statutory framework before making these arguments?) Again, a law professor on a list-serve argued that these actions violated the Anti-Deficiency Act and–you guessed it–contended that administration officials should be thrown in jail. Once again, none of these claims are true. The disaster relief memorandum is on solid legal footing. And I am confident the payroll tax memorandum memorandum is based on at least a plausible legal argument–though I am more confident about it today after some further research than I was yesterday. No one is going to jail.

Fortunately, these tempests finish pretty quickly. Emails are forgotten. Tweets are deleted. And everyone moves on.

Yet, I am still troubled. The burning desire to throw Trump Administration lawyers in jail is latent, and this passion rears its head on a moment's notice. We have already seen bar complaints filed against Attorney General Barr. Whose law license is next? Perhaps disbarment proceedings can become the forum for public retribution. Or will the Biden administration consider prosecuting the lawyers who authorized President Trump's most controversial actions?

The January 2017 meeting of the American Association of Law Schools (AALS) was a somber affair. It was held in San Francisco, shortly before the inauguration. During one of the main gatherings, a presenter asked everyone in the audience to talk to their neighbor about how they would deal with the incoming administration. It was a coping session. At that point, I stood up, and quietly, but non-discreetly, left the banquet hall.

What will happen at the January 2021 AALS meeting, which will be held (virtually) in San Francisco. Perhaps a thousand law professors can lead a chant over Zoom: "Lock them up!"


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  1. The disaster relief memorandum is on solid legal footing only if you ignore part of the law that directly addresses unemployment payments.

    1. Based on? Your emotions, again?

  2. Given the history of Democrats in power it’s reasonably safe to say that there will be no prosecutions. “Time to look forward” will be the refrain.

  3. I often think of an incident where immediately after the election where the EVP/CEO of a large Professional Organization ( The American Institute of Architects) sent a perfunctory congratulatory message to Trump containing an offer to work with him on matters of mutual concern which resulted in an immediate backlash.

    1. The very same thing happened with the American Physical Society with the canceling of their public affairs officer.

  4. What makes you think that the Republicans wont engage in lawfare payback? The left has “cut down all the trees chasing the Devil” — and what tree will be left for them to hide behind?

    And don’t assume Trump will lose — I don’t.

    And if it goes to the House, Pelosi doesn’t get it.
    Each *state delegation* gets one vote — Wyoming = California — and there are way more red delegations than blue ones.

    QED, Trump wins.

    1. What makes you think that the election will go the House? There does not appear to be any significant third-party or independent candidate.

      1. I believe it’s some bizarre situation where too many write ins swamp the counting system and nobody can get it straightened out in time, so sufficient states cannot certify their votes in time.

        I don’t buy it but that’s the claim.

        1. Colorado used to (I assume still does) require a write in candidate to register with the state, otherwise the votes aren’t counted. Not sure if it’s been tested by an unregistered write in candidate winning an election. Not sure how you’d know other than a very low count for one of the races relative to others.

        2. Transition Integrity Project — https://www.realclearpolitics.com/articles/2020/08/09/anti-trumpers_spout_radical_ideas_for_2020_election_143914.html

          Something about California threatening to secede and a few more things.

          1. Oh, PLEASE,PLEASE let California secede.
            Make Oregon and Washington, and Hawaii join her.

            1. No, don’t let California secede and become an independent nation. Give it back to Mexico.

              1. The theory is that we would prostitute ourselves to prevent California from leaving — not that we would say “good riddance.”

                Of course, were we to let those three states go, an overwhelming majority of the eastern (agricultural) portions of each would want to then secede from those states and remain in the union (like West Virginia) — there already is a movement in Eastern Oregon to join Idaho.

                1. What I don’t get is the belief that anything more than the coast would leave. Most of CA would happily remain. Ditto OR. Ditto WA.

        3. Try this.

          After the disaster that vastly expanded mail in ballots have been in primaries in several states, enough states fail to complete counting the ballots before the deadline for the electoral college to send in their ballots, preventing any candidate from getting a majority.

          The majority requirement for the EC is strict. Missed ballots don’t effect the numbers needed for a majority.

          1. You are right.

            The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice.

          2. If the ballots can’t be counted in time then almost certainly the electors can’t be appointed in time. The majority required is “of the whole Number of Electors appointed”, not the number allocated, so those unappointed electors will not contribute to the total.

    2. Ed,
      That’s a rather stupid assertion…that Pelosi doesn’t get it. What, you think NOT A SINGLE LAWYER ever said to her, “Hey, if this happens, one state: one vote?!? You think she is completely oblivious to what every political junkie has known for quite a while.

      Were you this uncharitable to President Trump? “What Trump doesn’t get is that, if he’s impeached in the House, he won’t be removed from office until after a conviction in the Senate, and the Senate will never muster 20 Republicans to vote to convict.” If Democrats went with that assumption (that no only did Trump not originally know this, but that no Republican ever thought to mention it to him), you’d rightly point out that they were being morons.

      1. If I’m not mistaken, Lawrence Tribe *is* a lawyer, and a professor at a place called Harvard Law.

        1. What do you think that article has to do with any of the things you said?

          1. Forget the article and listen to what the man says in the embedded video.

            I think he’s out to lunch — but others apparently don’t.

  5. This problem is a lot older than last week, and a lot broader than just Trump’s executive orders. The problem is that the Democrats, and their controlled media which is pretty much all of it, decided about 2008 that they can no longer have amiable differences of opinion vs any policy idea on the right. Instead, everything Trump says or does is maliciously portrayed as corrupt, criminal, racist, and other name-calling, and anyone supporting him as a hater,, so they need never address the merits or demerits of any of those policies — just as when Obama was in office, it was exactly the opposite and anyone who opposed his agenda was racist, N__i, and so forth.

    A good way to judge the sanity of accusations, by politicians or media, is to change every word in them that names one side to name the opposite side instead. “Black” becomes “White” and vice versa, Republican becomes Democrat, and so on. If you wouldn’t put up with the story when aimed at your own faction then you can’t expect the other side to be less outraged when it’s aimed at them.

    1. Obviously untruthful. Trump’s tax cuts for the filthy rich were were not seen as racist or criminal. They were seen as really bad policy, and a dumb idea. But nothing close to your fevered paranoia. But about the Wall? Yup.

      Part of the problem that Trump has is that he is, well, a racist. (And misogynist, etc). So, you can’t be really *that* surprised that when he speaks and acts, it’s seen in the context of, “Well, a racist person is saying and doing these things.”

      You’ll notice that Whore Pence, when he parrots Trump’s usual blather, is rarely called a racist. That’s cuz Pence (FAR more conservative than Trump ever dreamed of being) does *not* have a decades-long history of being an overt racist.

      1. A racist who did more to help American Blacks than any other President since Lincoln.

        It’s like Nixon and Israel — Nixon may have been a vile anti-semite, but there wouldn’t be an Israel if Nixon hadn’t been there for Israel in 1973 when they really needed him. See: https://www.haaretz.com/us-news/richard-nixon-the-anti-semite-who-saved-israel-1.6073645

        Trump may be a vile racist — although he is *not* his father — but look at the walk he has walked and not the talk he may have talked. Prior to this Wuhan Plague, the lowest Black unemployment rate *EVER*, real prison reform that freed a lot of Black men — promises that Democrats had made for 50 years and never delivered on.

        It’s like the feminists and Bill Clinton — he delivered for them even if he did leave a trail of victims in his wake.

        1. Yes, the unemployment rate among black Americans has been low while Trump has been President, because the economy has been good. But the issue here is what has Trump DONE for black Americans? Being in the White House while the economy is good is not the same as CAUSING the economy to be good.

          Ronald Reagan did not cause the big prosperity of the 1980s: what caused that was the mainstreaming of computers and digital technology. The science had matured. The 1980s would have been prosperous even if we had reelected Carter or elected Anderson.

          Bill Clinton did not cause the big prosperity of the 1990s: what caused that was the emergence of internet-for-everyone. The 1990s would have been prosperous even if we had reelected GHWBush or elected Perot.

          Presidents Wilson, Taft, Coolidge, and Hoover did not cause the “roaring ’20s” either. That was caused by the mainstreaming of cars, and assembly-line factories, and those were caused by improvements in materials science (mostly in metal-working technology, but also rubber and a few other materials) which had their first runs in WW1, making reliable machine guns and hand grenades.

          The lovely economy of 2017-2020, which employed so many black Americans (and everyone else), was mostly because of fracking which kept energy costs reasonably low and also created lots of jobs. And while Trump deserves credit for cheering for fracking, the fact is it had already gone from a tiny bit-thing — ten percent of our energy production in 2008 — to the big beautiful giving-tree — more than half of our energy production — by 2016, all BEFORE Trump became President. (Obama doesn’t deserve any credit for it either; the ones who deserve the credit are the scientists who figured out how to make it cost-efficient.)

          1. While it’s true that Presidents don’t cause prosperity, they are certainly capable of ending it, so when prosperity appears on their watch, they deserve at least credit for not spiking it.

            Trump has at least pursued a deregulatory agenda, and while it hasn’t gone on long enough to hugely improve the country’s business environment, it certainly kept it from getting worse, allowing the economy a breather. Usually we’re in a race between the tendency of the economy to grow, and government’s growing damage to that economy. Just hobbling government for a while can give the economy a chance to get ahead.

            1. While it’s true that Presidents don’t cause prosperity, they are certainly capable of ending it,

              Indeed. By responding incompetently to a pandemic, for example.

              1. I see Trump perhaps pushing too hard to fix the economy, not doing too little. You can’t have your cake and eat it too, punching-potus-in-the-nutz-wise.

                1. Way worse than that, Krayt.

                  It wasn’t just the pointless “reopen” strategy. It was the utter failure early on, the lies about the magnitude of the issue, the dismantling of the CDC office in China, the refusal to support testing, to get PPE, the mocking of those who wear masks, on and on and on.

                  There are people dead, lots of them, because of Trump’s bungling.

                  1. Actually, the virus killed those people. Just like other viruses and natural causes of death.

                    Likely many of those people could have saved themselves by observing the strict lockdown – even within their own family.

                    I have an immune-compromised family member who literally quarantined herself from the rest of the family, because that’s what the situation called for. She, as an individual, took the necessary precautions to guard her own safety. Imagine that – personal accountability.

                    1. The argument is, I believe, that Trump’s federal response could have been, and could still be a lot better.

                      And that has consequences in lives and economic wealth. Some of Europe is reopening and recovering. We’re still dying.

                    2. It would be absurd to say Trump couldn’t have done better; That would be to claim perfection. He could have been more aggressive about shutting down international travel early on. He could have subjected incoming American travelers to two week quarantines. He could have immediately shut down the CDC and FDA’s efforts to monopolize testing, and publicly declared that the WHO was lying about the virus at the orders of the Chinese government.

                      There are a lot of things he could have done to respond better, and every one of them would have met with furious opposition from Democrats.

                      It is rather conspicuous that the worst of the pandemic occurred in states controlled by the Democratic party, as a result of policies Republicans opposed. (Such as forcing nursing homes to accept carriers.) You’re really going to claim Democrats would have been open to Trump overriding Cuomo’s control over NY policy?

                      Anyway, to respond to Bernard, essentially all of the economic damage we’ve seen has been a result of state level decisions to shut down the economy. And mostly decisions made by Democrats. Could Trump have forced the states to not shut down businesses? I don’t see how, and had he tried, there’s precisely no way Democrats wouldn’t have set out to impeach him a second time.

                    3. “Some of Europe is reopening and recovering. We’re still dying.”

                      “Flattening the curve”, Sarcastro. The current death rate in New York and New Jersey is remarkably low, but that’s because they killed so many people up front that there’s hardly anybody left the virus could kill. Most of the country did much better, and is still full of people who could be infected. And who WILL eventually be infected, barring a vaccine.

                      The same thing happened in Europe. Some nations decided to spare their economies, accepted the casualties, and are now past the pandemic. Other countries prioritized lives, destroyed their economies instead, and still have people dying because they didn’t die months ago.

                      The goalposts have been moving so much I wonder if they’re mounted on rails. “Flattening the curve” was never supposed to keep people from getting infected. It was just supposed to drag the pandemic out enough hospitals wouldn’t be overwhelmed. Well, it did that, but flattening the curve doesn’t change the area under the curve, it just means the casualties happen later.

                    4. Europe’s deaths per capita is largely way below ours, with the main exception being the UK. So comparing Europe to NY only reveals you need to read more and speculate less.

                      One nation accepted the casualties: Sweden. It is not out of the woods.

                      Trump is still denying that things are particularly bad, Brett.

                      You can talk about state and local all you want, but the federal public health response both in messaging and resource use has been opaque, scattered, contradictory, sometimes larcenous, and generally about as bad as one might imagine.

                      Our economic response has been bad but not awful…until today.

                      Our only saving grace has been our scientific and medical communities. For all the Fed’s trying, our deaths per capita is only 7th worst in the world. We remain a badass country, but in spite of the current administration.

                    5. Sarcastro,

                      I don’t know what stats you think you’re using, but Europe’s deaths per capita from Covid have actually been pretty high.

                      Belgium, the UK, Spain, Italy, Sweden all have higher numbers of COVID deaths per 100,000 (above 50) than the US.

                      Moreover, if you look at the case fatality rate, the US is doing MUCH better than Europe, and most other countries.

                    6. There are a lot of things he could have done to respond better, and every one of them would have met with furious opposition from Democrats.

                      I see. Trump’s failings are the Democrats’ fault. That’s our Brett.

                      So if Trump had tried to organize the buying the of PPE instead of making the states bid against each other the Democrats would have yelled? If he had made speeches urging people to wear masks and so on, the Democrats would have complained?

                      Did the Democrats force him to pull CDC staff out of China last year? To make no preparation for a pandemic despite warnings? To disband the group at the NSC that worked on pandemic response? To claim that no one should worry because it was all going to go away as soon as the weather got warm? To spread lies China told him? To mock preventive measures and encourage people to ignore them?

                      Guess what. Kushner’s group actually came up with a sensible plan for some of this stuff. It was tossed because the problem was seen as a blue state issue only, so let the governors take the heat.

                      You are totally fucking insane, so committed to your cult that you can’t think straight.

                      Trump is outright responsible for the deaths of thousands. His errors were not reasonable misjudgments. They were part of an approach that saw only optics and Trump’s political advantage and the stock market as important.

                      essentially all of the economic damage we’ve seen has been a result of state level decisions to shut down the economy.

                      What horseshit. Do you have any idea how widespread the damage would have been had the virus been even more widespread than it is? In your Trump-cultist mind do you think the economy would have been just fine?

                      It is rather conspicuous that the worst of the pandemic occurred in states controlled by the Democratic party, as a result of policies Republicans opposed.

                      The only policies I see Republicans opposing are things like mask-wearing.

                      And guess what. Those states actually learned from what happened, while the Republicans didn’t. Still think DeSantis deserves an apology?

                    7. AL – We are the seventh worst in the world, behind ONLY Belgium, the UK, Peru, Italy, Sweden, and Chile.

                      You think that’s a good news story somehow?

                      Moreover, what is the significance of the case fatality rate? I suppose it tells how good our doctors are doing given the burdens put on them by our bad policies. But raw death rate seem more germane, no?

                    8. Yeah, let me foot-stomp bernard’s bit here:

                      Kushner’s group actually came up with a sensible plan for some of this stuff. It was tossed because the problem was seen as a blue state issue only, so let the governors take the heat.

                      That’s a monstrous sociopathic horrorshow.

                    9. I get that Sarcastro, but the larger point for any libertarian (leaning) individual is that in the vast majority of cases, individuals are responsible for their lives in all respects – financial, health, personal safety.

                      The only case I’m familiar with where the government actively put people into harms way, or otherwise prevented them from navigating their own form of virus mediation, has already been mentioned – putting infected into nursing homes.

                      As far as I can tell, the media more than did their job of making this the scariest thing to ever hit our shores. At that point, it was up to individuals to take those warnings into account and act accordingly. For many (most?), including myself, the risk was negligible.

                      When it came to the risk of overburdening the healthcare system, that made some sense and possibly was warranted. That concern has long since past and yet, here we still are.

                      I know I come off cold when I say this, but the fact of life is that people die. Dare I say it, but particularly the elderly. So for anyone to come off as indignant about 150k or whatever it’s up to now (if we’re to take the reporting on this at face value) cannot be taken seriously when getting sick and dying is a natural process.

                      When I was growing up, I thought that by and large the mantra of most adults at the time was to hope their progeny had a better life than they had. The notion of self sacrifice along the lines was noble and admired. Now I guess we’re willing to throw the entire country into jeopardy to maybe save 10, 20, 30, 50k lives? How many lives would we need to save to make the absolute self imposed devastation worth it? Because lest we realize, it’s not as though there were any measures that could be taken where no one died, right? People were going to DIE REGARDLESS.

                    10. Epidemics and wars are center-mass when you should have some sort of group action.

                      Libertarian concerns are attenuated when people’s choices may have fatal effects on not just them, but other people.

                      Its not the mere fact of deaths that’s the issue – it’s the tradeoff – avoidable deaths of others so I can maintain my libertarian purity. That’s not a position that will fly very well, which is I guess why so many have chosen to argue that the numbers are being falsified instead.

                    11. The validity of the numbers aside, I guess my point is this. If someone was absolutely determined to not get this virus, they could. It might take a lot of SELF sacrifice, but indeed, they could do everything from becoming a complete recluse, to wearing a full face ventilator. They could also drastically lower their chances by washing their hands frequently, avoid touching their face, and keep their distance.

                      Risk analysis is the duty of every individual and I believe this is a perfect example where it is prudently incumbent upon each of us. While it might seem like libertarian purity to some, the idea that one size fits all mandates in the face of a risk that spans everything from certain death to not even knowing you have the damn thing seems more like common sense argument to me.

                      Again, when individual recklessness threatened the innocent via overburdening the healthcare system, that was one thing. This has become something entirely different, though, or am I still missing something?

                    12. I think it’s pretty shaky that someone could avoid getting COVID if they were determined.
                      Especially given that not everyone has an equal number of resources.

                      But lets say you are correct. What we then have here is a vastly different distribution of burdens – individual acts to avoid passing it along are much less burdensome than individual acts to avoid getting it.
                      This would then reduce to a standard free rider issue, which is one of the most common examples of market failure, when state action is required. And since we can’t divide up the commons here, regulations seem like the main viable option.

                      There’s actually a thread that just popped up on this very tangent – https://reason.com/2020/08/10/libertarianism-and-communicable-disease/#comments.

                    13. Thanks for sharing the article.

                      I’m not sure how shaky the idea is that someone could avoid covid if determined. Unless this thing is aerosolized and capable of living suspended in the air long enough to find its way into someone’s personal domicile, how is it not avoidable? Better question, if it’s not avoidable under lockdown conditions, what’s the point of the lockdowns?

                      Never the less, you granted me that scenario, but in regards to “Especially given that not everyone has an equal number of resources”. Agreed, but I don’t see how limiting those who are more than capable of weathering this virus helps those with less resources survive it any better.

                      Nor do I understand, “What we then have here is a vastly different distribution of burdens – individual acts to avoid passing it along are much less burdensome than individual acts to avoid getting it”. Unless I misunderstand your position, you believe that because some people’s burdens to do so are harder than others (and for argument sake – through no fault of their own), that in the name of fairness (?), everyone’s burden should made the same? Putting aside whether that is actually “fair”, is that more prudent for the common good than making sure there is an economy and standard of living left for those who do survive?

                      Again, I’m not heartless. I just think I’m using the same balancing rational the professor used – weighing the cost benefit analysis of society at large, for that was not a blanket endorsement of forced vaccinations in a vacuum.

                      Also, I have trouble understanding why the numbers in regard to the spread is, in itself, a bad thing, when for many, it’s tantamount to getting the common flu and being bedridden for a week or so. For many others, they don’t even realize they have it. Therefore, I would argue that only a certain (relatively small?) demographic has a real concern and thus, be the ones to fairly/unfairly carry the burden. I might add that it’s a burden that largely doesn’t matter how much it spreads outside of their personal lockdown, till there is a functioning vaccine.

                      I think you’re line of argument (if I understand it correctly), is akin to to saying that because not everyone can afford cancer treatment, so no one should get it.

                    14. Nor is the burden of forced vaccinations even remotely equivalent to what is being forced on us now. With even less efficacy, I might add.

                    15. “If he had made speeches urging people to wear masks and so on,”

                      When was he supposed to have done this? Back when medical experts like Faluci were lying about the efficacy of masks?

                      The bottom line is, most of the stuff he could have done better, would have been violently opposed by Democrats. In large part because a lot of the deaths were caused by how Democratic governors ran their own states’ responses! You’d really have agreed with him overriding Cuomo ordering nursing homes to accept Covid 19 patients? Seriously? I doubt it.

                  2. “We are the seventh worst in the world, behind ONLY Belgium, the UK, Peru, Italy, Sweden, and Chile. ”

                    10th per https://www.worldometers.info/coronavirus/?utm_campaign=homeAdvegas1?%22%20%5Cl%20%22countries

                    US as a whole is 500 per million but NJ is 1,795, NY is 1688, Mass. is 1267, Conn. 1246, RI 958.

                    Incompetent NY governors are the most responsible. US stats would look much better without Cuomo et al. sending infected people into the nursing homes and doing little well except talk on tv.

                    1. Opps, “Incompetent NE governors” not “Incompetent NY governors” though Cuomo is the worst.

                    2. Indeed the US is far from the worst in Deaths/capita and the biggest contributors are those cited by Bob. Overall RI does not contribute much to US totals but the other states cited do.

                    3. Not to downplay the incompetence of NE leadership, but obviously their congested living conditions plays a huge role in their numbers, I would think.

                      For me, this highlights the problem with an ideology that takes on so many causes and subsequent positions. While they hate urban sprawl, this is clearly a costs associated with population density. Can you imagine what this virus would have done had we all lived in the same density of these major cities?

                      Not to mention they hate our population growth, but bend over backwards to thwart a naturally occurring culling event.

          2. I guess the difference is this: POTUS Trump (and Reagan) knew enough to simply get out of the way, and let people do their thing, economically.

            No POTUS brings back the economy. People do. But a POTUS can severely harm an economy with bad policies and regulations.

            1. And how do you account for the success of the economy under Clinton?

              1. Getting lucky with the Internet boom, causing investment and massive increases in government revenues (which Congress didn’t take lying down, and rapidly increased spending.)

                It took that grand of an opportunity for investors to leap over skittishness of rapidly increasing regulatory burden and tax increases outweighing, in their mind, chance of failure due to those usual issues.

                This is the mucking about that harms the economy.

                1. So Clinton was lucky, while Reagan and Trump were wise.

                  Pure non-partisan analysis there, Krayt. Forget it. It’s laughable.

                  1. You can keep the government paralyzed enough to not screw things up, if the legislative and executive branches are at each others throats.

                    1. Your ideology insists on an outcome that requires a double standard. So you act like it’s been arrived at empirically, and just repeat you ideology.

                  2. Clinton was and will be the last US president to have a budget surplus. That was not luck.

                    Of course he is cancelled because he is/was a serial sex offender

              2. “And how do you account for the success of the economy under Clinton”

                Speaker Newt Gingrich.

                1. So then Reagan gets Tip O’Neill?

            2. Team Hillary would have banned fracking.

          3. Coolidge actually shrank the size of government.

          4. What is missed about Bill Clinton is the 1994 election and the GOP taking the House for the first time since the Hoover Admin. THAT was when the economy actually got good and hence all of these good times have been GOP times.

        2. A racist who did more to help American Blacks than any other President since Lincoln.

          That’s one for the Trump cultists Hall of fame.

        3. I agree that Nixon was there for Israel in 1973. But I would caution you about believing anything you read in Ha’aretz. Basically, it’s a paper that is only read outside of Israel because eveyine in Israel knows it’s a load of crap.

      2. Erm, that’s not true. Trump’s actions are nearly always described as racist. And I have heard his tax cuts described as such -it’s one of the spring-loaded responses for those that automatically dislike everything he does. And for anyone who holds different views from them. A baseless smear that they believe is effective because they believe people think they are presenting intellectually rigorous arguments.

    2. The Democrats and their controlled media? You mean the media that spent the entire fall of 2016 talking about little except Hillary Clinton’s emails? That media?

      Hillary Clinton’s press coverage was almost routinely awful. The idea that the media is the Democrats’ lapdog is laughable.

      1. Hillary Clinton’s press coverage would have been awful for a normal candidate, because a normal candidate wouldn’t have been under investigation for criminally circumventing FOIA during the campaign, or had a long history of scandal. Sometimes the best a fawning media can do is to downplay their favored candidate’s sins, not entirely ignore them.

        While her coverage was awful for a normal candidate, it was remarkably favorable compared to what Trump got.

        Trump benefited a bit during the primaries, from the media’s tendency to play up the Republican candidate they think will be easiest to beat. See table 1, you can see the tone of his coverage got much worse during the general election than during the primaries. Hillary’s coverage barely changed at all.

        The most favorable outlet to Trump was FOX, which was 73-27% negative. Except for FOX and the Washington Post, every media outlet was more positive towards Hillary than Trump’s best outlet. (Figures 9 and 13) And most media outlets were more negative towards Trump than Hillary’s worst outlet!

        The most helpful thing to Trump in all this coverage was that the media early on made the mistake of assuming that, because THEY disliked Trump’s policies, the voting public would. So they played them up, until late in the campaign, when they realized their mistake.

        You can see that in the coverage now, the media barely even acknowledge that Trump HAS policies.

        1. So when Trump gets coverage, it’s a Democratic plot.

          the media barely even acknowledge that Trump HAS policies.

          The media talks plenty about Trump’s policies. Calling them mostly idiotic or worse, which they are, is accurate.

      2. “Hillary Clinton’s press coverage was almost routinely awful.”

        Extremely delusional.

  6. I got a title for your next book professor ego: Fear of Snowflakes

    1. Better: The EcoMelter — melting 100-125 tons an hour.
      See: https://www.youtube.com/watch?v=LmDl_nETs8U

  7. For a guy at a 5th rank law school, JB has an awful lot to say… every day and then some.

    1. Two words in rebuttal: “Lawrence Tribe.”

    2. I should have said a 5th tier school.

      The 5th ranked school would never have him.

  8. If anyone should go to jail, it is Sally Yates who authorized 2 fraudulent FISA applications with respect to Carter Page. She also violated legal ethics by undermining her client, the President of the US in publicly stating that his restrictions on immigration from some Muslim countries were wrong. She had every right to resign and refuse to enforce them, but she had no right to work against the interests of her client. I am amazed that she has got away with this and that no one has filed an ethical complaint against her in Georgia.

    Also, should be noted that Trump’s executive orders were upheld by the Supreme Court, making Yates not only ethically disloyal, but wrong.

    1. The “client” of the AG is the Government of the United States, not the president personalty. Their duty is to the constitution and the law. The first (and second) Muslim ban were never decided by SCOTUS because they were withdrawn and replaced with the third one which was. She was right to resist.

      1. Trump doesn’t get to have as a matter of Trumpster right to his wished for Roy Cohn to carry out his orders, or Barr is sufficiently Cohn-like for Trump’s purposes?

        Yates will be remembered along with Elliot Richardson for standing up to a corrupt POTUS.

      2. I don’t recall Sally Yates’ name being on the ballot.

        For all of its problems, Andrew Jackson’s spoils system has a lot to be said for it — the people get the government they voted for, instead of the government they voted AGAINST.

      3. Remind us again who JFK’s attorney general was. The one who wire-tapped Martin Luther King.

        1. I am not convinced that RFK & Hoover were completely wrong in worrying about Communists and Soviets attempting to infiltrate King’s movement.

      4. I was very clear in my comment that the office of the President was the client of Yates and not Trump personally. However, a human being has to occupy the office and Trump as the holder of the office has a right to issue executive orders. Yates had no right to fight the office of the US, her client.

        The first and second exec orders were denied on due process grounds with respect to green card holders. Three days after they were issued Trump administration made clear that they would not be enforced against green card holders. Ct. of Appeals being biased against Trump refused to accept the withdrawal of that portion of the exec order. The procedure used by Trump administration was sanctioned by the Supreme Court in the Marco Defunis 1974 Supreme Court case.

        If Yates had not been blatantly unethical, she would have worked with the administration in same way later lawyers did instead of violating her duty of loyalty to the office of the President of the US. What you would expect from someone who signed off on 2 fraudulent FISA applications.

  9. Trump started it with “Lock her up!” and literally the next day disclaimed it.

    Anyway, siccing the government on your political enemies is supposed to be a no no. Can we please stop? Both sides, thanks. This whole Trump impeachment was just the Republicans’ treatment of Clinton in the 1990s coming home to roost.

    1. No. Both the Trump and Clinton impeachments were both completely valid in my opinion. They both should have been convicted.

      1. What would you convict Trump of? Making a phone call?

        1. Yeah. Investigations require a specific procedure. It was a wrong procedure High Crime. Oh, oh so High.

        2. Jimmy, the larger question is what Hillary Clinton ought to have been convicted of. And as to the Russians, who gave them all of our uranium?

          And by Molly’s standard, Obama should have been impeached for the pallet of cash, and I still wonder about the rumors of Hillary having been injured in a plane crash in Iran.

          She forgets that Clinton wasn’t impeached for fornication but for perjury and lost his law license for it.

          1. Perjury in a civil lawsuit which has no bearing on national security or on any national interest and is not committed by means of the perjurer’s position in government is not a HIGH crime. “High crime” means a crime committed by a government official, by using the power of his office to commit the crime. Like if an FDA official were to approve a new drug without adequate proof of safety and efficacy, because he has a brother who works for the company which makes the drug. THAT’S a high crime, because if he weren’t an FDA official he would not even be able to consider the possibility of committing it.

            Anyone can commit perjury in a civil lawsuit. A doorman, a violin teacher, a waiter, a professional volleyball player, a model, a novelist, a painter, anyone. So it’s not a high crime.

            1. “High crime” means whatever the House and 2/3 of the Senate says it means.

            2. It’s “high crime or misdemeanor” — please note the “or”…

              But there was also this: https://www.youtube.com/watch?v=kMu-2tXfPQI

              1. “High crime or misdemeanor” means high crime or HIGH misdemeanor. Just as “green eggs and ham” means green eggs and GREEN ham.

                1. *insert pot joke here*

          2. “All our uranium”????

            Less than two percent of the world’s uranium comes from USA.

            Less than two percent of the world’s uranium RESERVES are in USA

            “20% of USA’s uranium” is like “20% of USA’s population of live kangaroos”.

            90% of the uranium we use in USA is imported.

            And, we only use it for energy and for science; we don’t need any more uranium for our military. USA already has enough weapons-grade uranium. We stopped producing it more than fifty years ago, and we have supplied our need for it since then by recycling existing stocks.

            The reason the Russians wanted to control Uranium One (the Canadian company all the fuss is about) is because of uranium mines the company owns IN KAZAKHSTAN, not because of anything it owns in USA.


            1. And if Trump had done the Uranium 1 deal???

              Remember too that our nuke policy is to precisely hit the desired target while the Soviet (and I presume Russian) approach is to take out the entire grid square. They are the ones who did the Tsar Bomba, not us — and you need more weapons grade uranium for bigger bombs….

              Back in the 1930’s, we sold a lot of scrap metal to the Japanese, and they proceeded to shoot it back at us a decade later.

              1. All of which is completely irrelevant to the point, which is: The whole “Oooh, Hillary Clinton sold 20% of our uranium to the Russians, bad bad naughty naughty, oogety-boogety!” is a bunch of fake-news horse-shtt, invented by tricksters for an audience of ignorant morons.


          3. I still wonder about the rumors of Hillary having been injured in a plane crash in Iran.

            Sure you do, you moron.

            Here is the modern American conservative. Delusional, dishonest, ready to swallow any kind of conspiracy theory.

            1. Bernard, I’m giving her the benefit of the doubt.

              Remember the prism on her glasses, her unexplained falling, and then what appeared to be some sort of a back brace when she collapsed after a 9-11 observance, reportedly from heat exhaustion*?

              WONDERING about rumors of her having been in a serious plane crash is neither delusional nor dishonest — nor being unfair to her when you think of the other possible explanations for the above.

              Other possible explanations which, unlike spinal cord injuries, would question her ability to be President.

              * See: https://www.youtube.com/watch?v=-_48O3nFZ3c

        3. What kind of sound-bite defense is that?

          Suppose Trump called Putin and offered to sell him top secret information.

          Could he be impeached and convicted for that? “Just a phone call,” says Jimmy.

          Really, do you think before you post this stuff?

          1. Remember Obama telling the Russian ambassador that he would “have greater flexibility after the election”?

            1. Amazingly off topic. Like, a virtuoso performance nonsense response to that hypothetical.

  10. That first sentence — ‘there have been a couple of law professor freak-outs recently’ — led me to believe the other Conspirators were announcing an intervention designed to get this guy some help.

    Let Blackman be Blackman!

    1. I’m encouraged by the Trump claque’s expressed anxiety.

      1. If you have a scintilla of qualifications in any neurological field, you can’t honestly think that Biden has the ability to be POTUS. Goldwater rule notwithstanding, just listen to what he is saying, and this is not Sam Donaldson catching Reagan unprepared, but Biden prepared and attempting to say something coherent.

        At least Trump knows the difference between “the” button and the one you can buy at Staples — I’m not so sure Biden would.

        1. Even if Biden were completely demented and could not brush his teeth without being coached, he would still be better than Trump, who is actively undermining the central principles of the free world.

          Zero is better than negative ten.

        2. LOL. ‘If you’re a professional, you’ll agree with my layperson remote diagnosis!’

        3. I mean, I’ve seen Biden fundraising videos online where he made gaffes. And you know they did tons of takes on them.

  11. Seems like other conspirators at the VC—Kerr, especially, but also Somin and Adler—have become less engaged since the Blackman onslaught began. Hard not to wonder whether they are re-thinking whether this context still suits them.

    1. Stephen,
      It is because of guilt by association

  12. Biden will have enough trouble keeping his own family out of jail.

    Alana has a point — how do you get the DC government to do *anything* in just 6 days…

  13. Oh no! Some professors are saying mean/stupid things on a listserv! Wait, what does that have to do with Biden? How does that somehow indicate that he’s going to take office and start prosecuting attorneys?

    Biden hasn’t said anything about prosecuting anyone, as far as I know. Even when Trump came into office with “Lock her up” as his unofficial slogan, he didn’t prosecute his political opponents (ignoring the investigation of McCabe, which was dropped without charges). So I’m going to go out on a limb here and predict that if Biden wins, no Trump administration lawyers are going to be prosecuted.

    1. I’ve also been guilty of generalizing about the nonsense I hear on the Internet.

      But this is pretty breathless.

      1. Case and point the people on this thread itching for ‘liberal states’ to secede.

        Says more about them than either those states or the GOP generally.

  14. It is one thing to vehemently disagree with policy, and vigorously contest and debate it. It is quite another to use the power of the state to persecute people. And that is the difference we are talking about here.

    POTUS Obama had a choice upon coming into office. He could have chosen to prosecute people who carried out enhanced interrogation against enemy combatants during our War on Terror. He chose not to do this, to his credit. Perhaps his example is illustrative.

    If we are going to criminalize policy differences, at least be clear about it.

    1. Those who cannot prosecute calling for the opposition to be thrown into jail has been a thing for a long time. Since the Clinton admin at least, maybe since Reagan, though that was mostly Iran-Contra so…

  15. Blackman had to have predicted the comments would be all about throwing Democrats in jail.

    Criminalizing the opposition has been general politics since at least Clinton.

    Thinking you’re above the usual partisans law profs is I fear sincere for Blackman.

    The defense of ‘this isn’t obviously illegal – it’s based on a colorable take on the law’ is a pretty revealingly anemic defense.

  16. There is nothing trumpski can do that is wrong in the eyes of Blackman

    and of course he insists on categorical proof of by detractors rather than actually having a defense for trumpskis wrongdoing

    1. You obviously don’t know Blackman very well if you assert that he thinks that Trump can do no wrong.

      1. Uh, do you read this blog? The closest I’ve seen is ‘Trump is trolling. Which is another political masterstroke!’

        1. ‘I’ve also been guilty of generalizing,’ crikey, that didn’t take long . Blackman does tend to defend trump, whom you dislike. As you, more than the other left-leaning commenters tend to be able to rationally parse through things, perhaps it’s simply bias on your part that you haven’t worked through. Though, given your tendency to tell other commenters the ‘true meaning’ of their words, and impart intent when you have no way of knowing, you may simply be comfortable with bias.

          1. Do you have a counterexample?

      2. Blackman is pretty clearly dedicated to backing Trump’s every move.

        1. Prof. Blackman might as well stick with Trump. He is past the point of rehabilitation and will wear the yoke of Trump for so long as he remains in public life.

          Most Trump fans will, soon enough, try to deny they were Trump supporters — just try to find someone who will admit to having been a violent racist during the ’50s or ’60s. Those blacks were beating themselves at the Pettus Bridge and those Freedom Riders not only committed suicide but also buried themselves — if you believe the current alibis, even in Mississippi and Alabama. Today’s bigots — and yesterday’s bigots — no longer wish to be known as bigots, at least not publicly.

          But the record will prevent someone like Prof. Blackman from being able to dodge accountability for supporting Trump. So he might as well go all-in, every hand.

  17. “What will happen at the January 2021 AALS meeting, which will be held (virtually) in San Francisco.”

    Perhaps they’ll draft secession documents for deep blue states, starting with the west coast.

    1. 1. There are tons who aren’t drooling Democrats.
      2. There are tons who are Democrats, but non-drooling, who wouldn’t want to leave.
      3. There are tons of their pet class immigrants, who wanted to come to the US, not California. Their only reason for existence in the Democrat’s calculus is as a crutch to roll the domestic electorate. CA, nation, buys those national leaders reduced, not increased power.
      4. The point of all this is to un-elect the president because control of it helps enrich them — as politicians. In short, none of the people driving this at the highest levels have any interest in becoming lords of a little country.

      Other than all that…

      1. pet class immigrants

        Jesus, man. Is there a way you can talk about your immigration conspiracy theory without dehumanizing them quite so hard?

        I’m quite sure politicians are getting richer than ever under Trump.

  18. Perhaps this poll should be more widely read and understood.

    This is the % of Americans by political ideology who feel afraid of citing their political views in public.

    ONLY “strong liberals” have a majority is feeling safe to make their views public. Every other category (Liberals, moderates, conservatives, strong conservatives) have a fear of making their views public.

    Moreover 50% of strong liberals support firing people who donate to Trump (compared with 36% of strong conservatives). Think about this. Really think about it.


    1. There’s a number of reasons why that could be the case. The threat being genuine is only one of them.

      1. It is clearly dangerous professionally at top tier New England Universities to say anything in disagreement with the BLM (or George Floyd, if you prefer) generated frenzy.

  19. How many of these professors carefully parsed the memorandum and the complex litigation history before making these claims?

    Blackman calling the kettle black.

    Josh, of course, would never rush to post without thoroughly researching the issue.

  20. The 2017 AALS members were profoundly shaken that an incoming President would be someone who had repeatedly promised to investigate the “losing side” after the election, and didn’t have any concept of how the federal government works or who does what, nor had any desire to learn. And who had an advanced case of verbal diarrhea. But Josh had no problem with that. So he walked out.

  21. Prof. Blackman, be serious. As if we’ve all forgotten the thousands of Trump supporters shouting “lock her up” at Trump’s frequent and incessant urging. It was the main slogan of his campaign. And now you’re playing the moral equivalence game citing a listserv comment of one professor, speaking somewhere, outside of his or her official capacity, as indicative of “the professoriate” (of which, I believe, you are a member) coming with torches and pitchforks. Please.

    Trump’s DACA actions clearly violate the spirit of the holding in Regents, no matter how you try to minimize that. And that is merely the tip of the iceberg of the administration’s lawlessness, yet the best you can come up with to feign moral outrage is a listerv comment form some professor, somewhere seeking criminal recriminations against the administration. That along should tell you that you are, as always, on the wrong side of truth and justice.

  22. Prof. Blackman:

    Are you on the spectrum?

    It’d explain a lot.

  23. You’re equating comments by “One professor on a list-serve” to chants led by a party’s presidential nominee? The latter is fairly attributable to the party or ideological camp; the former, not so much.

  24. I’m not sure I understand the path from “a law professor on a list-serve argued something” to what the Biden Administration would do.

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