Criminalizing Politics is a Threat to Democracy

Both President Biden and former Presidents Obama and Trump are partly to blame

Since I was a sophomore in Yale College, in 1976, I have studied the process by which democracies die and get turned into dictatorships. One of the key causes of the death of democracy is the criminalization of political disagreements. While politicians love to be able to cast their opponents as being not merely wrongheaded but also crooks, this is a temptation that must be avoided. The jailing of people who one cannot beat in a free and fair election subverts democracy and has led to dictatorship in many democracies.

It has only been 231 years since the French Revolution's Reign of Terror ultimately sent 50,000 people to the guillotine including former King Louis XVI and his wife Marie Antoinette. This situation led inevitably to a Napoleonic dictatorship. Americans must resist at all costs traveling down this very same dangerous path.

In his State of the Union address last night President Biden cast himself as the defender of democracy who would jail former President Donald Trump. I criticized President Trump's behavior on January 6, 2021 in scorching terms, and I argued that his second impeachment should end with a verdict of disqualification from holding office in the future. But, I specifically said then, and I continue to believe now, that no former President of the United States should ever be sent to jail because of the effect that doing so would have on the 35% to 40% of the U.S. population has in revering a particular President who may have committed a crime. President Gerald R. Ford's best and most memorable act in office was his simultaneous pardoning of President Richard M. Nixon and of the Vietnam War era draft evaders to heal the country from the poisonous, political atmosphere of the late 1960's and early 1970's.

Notwithstanding this, the Biden Administration is currently criminally prosecuting Donald Trump for offenses that would lead to Trump's imprisonment where he could easily be murdered by fellow inmates. Trump has thus likened himself, quite reasonably, to Alexei Navalny, the opponent of Russian President Vladimir Putin who was recently murdered in jail where he was held for the crime of running against Putin when he is up for re-election. Even more offensively, Trump is being prosecuted by an unconstitutionally appointed Special Counsel instead of by a Senate-confirmed U.S. Attorney who has been designated to be a federal Special Counsel. The reasons why this is unconstitutional are spelled out in meticulous detail in a law review article by me and Professor Gary Lawson, Why Robert Mueller's Appointment Was Unlawful? 95 Notre Dame University Law Review 87 (2019).  We have made these same arguments as well in numerous amicus briefs about Jack Smith's illegal appointment as Special Counsel, which we have been filing in 2023 and 2024 in the U.S. Supreme Court, in the U.S. Court of Appeals for the D.C. Circuit, and in the Florida District Court before which Trump is being prosecuted by Jack Smith.

If President Biden was really serious about being a friend of democracy, he should also call out New York State Attorney General Letitia James for her highway robbery civil lawsuit for $450 million in civil fraud fines and penalties, which just happens to drain Donald Trump of all of his cash just when the national presidential election is getting started, and he needs money.  This is a vile abuse of the legal system, which poses a direct threat to democracy.

On top of all of this, there is the fact that Donald Trump has not even been charged with inciting a riot under the Insurrection Act, the penalty for which includes disqualification from holding office, and the "crime" of which he is most plausibly guilty. Instead, the Biden Administration waited nearly two years to prosecute Trump for his behavior on January 6, 2001 finally filing dubious indictments and almost guaranteeing that any criminal trials would occur in the middle of the presidential election, as is now happening. Joe Biden and Merrick Garland's "pretense" of "depoliticizing" the Justice Department is nothing more than a fraud on the American people. A serious Attorney General would have appointed a U.S. Attorney Special Counsel to investigate Trump for violating the Insurrection Act at 12:01pm on January 20, 2001, and such a serious Attorney General would have made clear that he sought no jail time but only a disqualification from holding office in the future. Trump should have, at most, been treated the way former President Richard M. Nixon was.

Former President Trump and House Republicans are just as guilty of criminalizing politics as is the Biden Administration. They have hounded Hunter Biden, a sad middled-aged, drug addict, with countless calls for criminal prosecution.  While many of these complaints have some merit, and while I believe Hunter Biden has committed crimes, I think he should be heavily fined and not jailed because of the norm of not criminalizing political disagreements.  Former President Trump has also threatened to weaponize the Justice Department against his political foes if he is elected President in November.

It is quite understandable, given all that the Democrats have put Trump through, for the former President to feel the way he does, but he should turn the other cheek and not seek revenge. Trump needs to restore democracy in the United States, and the bringing of partisan criminal prosecutions will not accomplish that goal. Back in 2016, when Trump called for locking up Hillary Clinton for her home use of a private server for classified information, I wrote in opposition to prosecuting Hillary Clinton. As Trump has lived to discover, prosecutions for the mishandling of classified documents are very much of a two edged sword, one edge of which is now quite wrongly being used against Trump himself.

Former President Barack Obama started this recent descent into the criminalizing of politics when his Justice Department, on totally spurious grounds, began a secret criminal investigation of Trump's 2016 presidential campaign when he was still just a candidate for office.  The Obama FBI's behavior was reprehensible as was the absurd Mueller Special Counsel investigation it led to.

It takes two parties -- Democrats and Republicans -- to start the process of criminalizing politics and it will take both parties to stop it.  The media, the academy, and the judiciary should come together and do this country's democracy a big favor by ending the criminalization of political disagreements, which threatens to become like the French Revolutionary Reign of Terror. Our 235 year old constitutional democracy has never been in greater danger.

Comments

[Jerry B.]

Nice to see the intelligentsia finally figuring it out.

[Dr. Ed 2]

I think it is too late -- it's not just Biden, but you will see Trump persecuting ANTAFA the way the Jan 6th folk were. The Dems deserve this!

[Sarcastr0]

J6 insurrectionists went to a place and did crimes. On camera.

ANTIFA is just like a twitter handle.

[Theendoftheleft]

A twitter handle referring to related groups that also committed crimes on camera. You just don't care that they did.

You don't really know any Antifa folks, do you Tankie?

[Heedless]

So lock them all up.

The problem isn't that we stepped on the J6 rioters. They deserved to be stepped on. The problem is that we didn't crack down on the BLM riots. You can trace the origins of J6 to the leniency blue cities showed there previous rioters.

Civil disorder is dangerous. Police need to respond quickly and overwhelmingly and leave the next group of assholes in no doubt that it is a bad idea.

[Sarcastr0]

We arrested and charged plenty of people in those riots, though. It's been linked here, and you can look it up.
https://apnews.com/article/records-rebut-claims-jan-6-rioters-55adf4d46aff57b91af2fdd3345dace8

You can trace the origins of J6 to the leniency blue cities showed there previous rioters.
The right media's attack on cities shouldn't be a sustainable strategy, but conservatives who live in cities would rather stand by their narrative than engage with what their eyes tell them.

[Heedless]

Don't be absurd.

There were a few downtowns occupied for months, police responses curtailed in nearly every major city, and good liberals of every stripe denouncing calls for a more muscular response as racist. The New York Times fired its op-ed chief for publishing a single article calling for the riots to be quelled.

We spent the Bush years proving that our major cities knew how to suppress a riot – heavy police presence at volatile protests, immediate and aggressive response to violence or property damage, act early to prevent anything from snowballing – and then we spent the Obama and Trump years ignoring all those lessons in the name of social justice. The first night of riots Might have caught our cities by surprise. Every night after that was a deliberate policy choice.

[Sarcastr0]

I liked to a source, and it looks like you didn't read it. Because you have a story.
I know people who were in Portland and DC. I'm not saying it was the best to be there at the time, but 'occupied cities' is a hilarious overstatement.

What you call 'quelling the riots' was actually a call to *deploy the military.* If you have to euphemize your story of media bias, maybe that means you're on the wrong side of that story.

Weren't the LA riots under Bush?

Our cities are doing fine these days. Your lust for liberal blood doesn't seem required to prevent a 'snowballing' effect.

You just see like the usual violent but cowardly Internet Tough Guy.

[Brett Bellmore]

A twitter handle that caused $2B in property damage and killed a few dozen people? Damn, that's one dangerous twitter handle.

You're pathetic, you know that? All a terrorist group has to do is use a moderately obscure organizational structure, and espouse vaguely left-wing goals, and you're all "It's just an idea, ideas can't commit crimes.".

[Sarcastr0]

Antifa cannot be persecuted like J6.

You, as I recall, think Antifa is not only a real organization but is the paramilitary arm of the DNC.
So I’m not really too concerned that someone who lives in some kind of thriller fantasy world takes issue with my facts.

[#FFFFFFPride]

Antifa cannot be persecuted like J6, because unlike J6, Antifa doesn't refer to human beings committing crimes.

It's just a right wing myth and a cranky ol' twitterer. J6, on the other hand, well that's a real organization. They are incorporated in Delaware and have offices in several states. They even have official training manuals with instructions like "Wait for right wing dog whistles like 'Go home in peace, do not commit violence" as their signal to insurrect and overthrow the government. There's even a dastardly footnote "P.S. to overthrow a government that spends $1T a year on defense, DO NOT TAKE ANY WEAPONS".

[Sarcastr0]

You are strawmanning very hard. Bringing in Trump's speech, and some kind of group guilt theory of J6 prosecutions.

In reality, J6 is a bunch of individuals who did crimes on camera on a specific day at a specific time.
Antifa is not that.

What is your thinking on how Antifa would be prosecuted?

[Dr. Ed 2]

I'd be happy with the mere persecution of individuals associating under the banner which is what the FBI did with Jan 6th but what is now ANTIFA is a criminal conspiracy that has existed for over 40 years. Back in the '80s it was distributing "politically correct coffee" -- cryovaced cubes of Nicaraguan coffee back when coffee only came in metal cans and Reagan didn't like Nicaragua.

It was calling itself BAMN back in the '90s and ANTAFA now -- it's the same criminal conspiracy with local cells that are loosely networked with each other nationally.

So prosecute the individuals for the CRIMES they have committed (including impeding a Presidential motorcade), better also prosecute the cells and shut the damn thing down.

[#FFFFFFPride]

Dr. Ed.

Didn't you read what Sarcastr0 wrote? Since "Antifa" isn't real, those aren't real people committing those crimes.

That's just rightwing conspiracy nonsense.

[Dr. Ed 2]

Remember this? https://www.youtube.com/watch?v=RUE0tukdr4c

I almost fell off a roof laughing when I heard it on the radio.
And it's about as accurate as Gaslighto's claim.

[Sarcastr0]

If only the FBI consulted you, I'm sure they'd wind up this vast criminal conspiracy (to do...?) in no time.

[Riva]

The prosecution of members of Antifa would be a proper use of RICO and other laws, it would not be the equivalent of lawfare.

[Sarcastr0]

It's never RICO.

[Dr. Ed 2]

Yes, but why?
Remember the VAWA decision?

Not all "conspiracies" are RICO.

[Sarcastr0]

VAWA is a RICO now?

[Dr. Ed 2]

Good Lord, Gaslighto --- SCOTUS ruled that it wasn't.

[David Nieporent]

VAWA is a RICO now?

See, the thing with Dr. Ed is that he has a mental illness that requires him to speak without looking anything up first. So anything he says that isn't just an outright lie is something he dredged up from his dysfunctional memory and refused to check. So if you take what he says as a starting point and assume it just vaguely approaches — but not too closely — the facts, you can sometimes guess what he might be thinking of.

In this case, I think he means to refer to NOW, not VAWA. (Both involve women, right?) In NOW v. Schiedler, NOW sued a bunch of anti-abortion groups under RICO, and prevailed.

[Dr. Ed 2]

I was actually thinking of United States v. Morrison, which, while decided on Federalism grounds, I had been led to believe involved aspects of RICO because of the Federal venue.

As to NOW v. Schiedler, the Wisconsin Women;s Law Journal came to the opposite conclusion after the second and third time SCOTUS was asked to address this matter.

http://hosted.law.wisc.edu/wjlgs/issues/2006-spring/nero.pdf

Now as to who is "mentally ill" -- well one of us can provide citations disproving the other's cite, while it remains true that SCOTUS tossed the VAWA Federal litigation in what was, at least, a RICO-ish venue proceeding.

[David Nieporent]

I had been led to believe involved aspects of RICO because of the Federal venue.

Led to believe… by the voices in your head? These are all gibberish. Nobody led you to believe that, there's no such thing as "aspects of RICO" and "venue" isn't even the right word.

while it remains true that SCOTUS tossed the VAWA Federal litigation in what was, at least, a RICO-ish venue proceeding.

In fact, it does not remain true and nothing in there is even remotely resembling law. There's no such thing as a "venue proceeding," let alone a "RICO-ish" one.

The Morrison case had fuck all to do with RICO. You might as well have mentioned the Grammy Awards or the moon landing for all the sense your comment made.

[David Nieporent]

It was calling itself BAMN back in the ’90s and ANTAFA now — it’s the same criminal conspiracy with local cells that are loosely networked with each other nationally.

There's no "it" to call "itself" anything; Antifa is not an acronym so I don't know why you're capitalizing it; and it's definitely not "ANTAFA." And BAMN is an actual organization which is not Antifa.

[Bruce Hayden]

Actually, AntiFA is closer to 90 years old. It started as a Soviet Marxist counter to Hitler’s National Socialists for control of the hearts and minds of the socialists in Germany, battling Hitler’s Brown Shirts in the streets of Germany. The Nazis won, AntiFA lost, and the rest is history. With the fall of the Soviet Union, AntiFA switched its allegiance to China, as evidenced by their increasing use of the Chinese Communist red hammer and sickle on their helmets and ballistic shields (along with their continued use of the AntiFA logo). AntiFA means Anti-Fascist, which originally meant anti-Nazi, since the Fascists they were fighting with in street battles were German Nazis. This is often portrayed as a virtuous fight, ignoring that communists have killed far more innocents over the last century than the (real, not imagined) Nazis ever contemplated killing. It’s probably why the left here continues to call their enemies “Nazis” despite those enemies rarely having any connection to the Nazis that AntiFA battled 90 years ago (except, of course, in Ukraine, where they represent German Ukrainians fighting Russia and Russian Ukrainians for control of the country).

[Sarcastr0]

If you do this kind of time jump from the 1940s, do I get to call today’s America First movement a wing of the Nazi Party?

Unlike you, I don't even need to jump an ocean to do it!

[Dr. Ed 2]

Gaslighto, you are not getting away with this!

"You, as I recall, think Antifa is not only a real organization but is the paramilitary arm of the DNC."

We've been told for over three years that Jan 6th was the paramilitary arm of Trump 2020 -- to the point that there is a fraudulent criminal prosecution of Trump and then you try to deny that ANTAFA even exists. Kinda like folks used to deny that the Mafia even existed...

"So I’m not really too concerned that someone who lives in some kind of thriller fantasy world takes issue with my facts."

That is called "gaslighting" although you might want to learn a bit of history lest you get to relive it. What really caused the American Revolution (corrupt & incompetent British officials). Who were the "Committees of Public Safety" and what did they do? And how did things turn out for the Loyalists back then?

[Riva]

I wouldn't expect a leftist/marxist to concede the point that this criminalization of politics probably should stop, even if the gaslighting/denial undermines their legitimacy and the recognition of the improper lawfare would actually make them more credible. Not the way they think. They see an advantage in targeting political opponents, and probably rightly understand that the public is turning against them, so don't expect to see less gaslighting or lawfare.

[Sarcastr0]

All you have is ipse dixit and personal attacks.

Marginally better than Ed's bloodthirst and flights of fancy, but you just come here to yell and that's pretty lame too.

[Theendoftheleft]

You in turn just offer bald assertions---typically, false ones.

[Riva]

Not bright enough to realize he’s proving my point. Although maybe I should have used “neo-marxist” instead of marxist? And he'll continue to embarrass himself with more gaslighting/lies, they can't resist. Best not to respond to them.

[Nige]

What point is he proving? Trump is accused of comitting crimes. He's getting the same as any other citizen accused of committing crimes. If anything, he's getting off easy. You think he should be above the law.

[Sarcastr0]

Yes, those single-use paramilitary arms.

And no, telling you you're full of shit is not 'gaslighting.'
You're full of shit about what gaslighting means as well.

And we're back to bloody masturbatory fantasies about the coming Revolution. Can't imagine why anyone would call you disconnected from reality.

[Dr. Ed 2]

Masturbatory fantasies -- or citing historically relevant facts and suggesting that repeating the mistakes of the past is likely to repeat the consequences of the past.

"Fantasy is a genre of speculative fiction involving magical elements, typically set in a fictional universe and usually inspired by mythology or folklore."

The American Revolution actually happened, in this universe and with documented facts. Which ones am I making up? MA Governor Hutchinson wasn't tarred & feathered? Etc....

[Sarcastr0]

Yes, Ed, I was telling you the American Revolution was fiction.

Thank you for setting me straight.

[Dr. Ed 2]

We call you Gaslighto for a reason...

[Sarcastr0]

The reason seems to be you have some fundamental reading comprehension issues and don't know what gaslighting is.

[Nige]

Antifa did? When did they do that, holy shit.

[David Nieporent]

All a terrorist group has to do is use a moderately obscure organizational structure,

It's not an "obscure" organizational structure. It's no organizational structure. There are people who can be reasonably described as antifa, but there's no organized "group" that can be.

[Brett Bellmore]

"It’s not an “obscure” organizational structure. It’s no organizational structure."

That's the damned point of having an obscure organizational structure: So that your allies can claim that you don't have one, so there's "nothing there" to investigate and shut down.

But it's clear that they DO have an organization of some sort, because they can do things in an organized manner at times.

[Sarcastr0]

People dress up and show up at events sometimes. That does not require an organization.

The rest is you saying without evidence that there is secret stuff going on yet again.

[Absaroka]

I agree that a bunch of Lakers fans showing up at game time wearing Lakers jerseys doesn't imply the existence of an formal fan club, or even any organizing other than knowing when the game starts.

OTOH I'd guess the Sinaloa Cartel probably isn't incorporated and doesn't publish bylaws, but reasonable people would call it an organization.

And I think that reasonable people looking at Antifa see more organization than, say, a bunch of college kids arriving at the same time in Florida for spring break. You can watch video of people coordinating with walkie talkies and so on.

[Sarcastr0]

Antifa is not a cartel.

I disagree that reasonable people look at Antifa and see an organization. That's right-wing paranoid villain creation out of some wanky twitter leftists that hasn't really been a thing in years.

Absaroka, this discussion is me and DMN pushing back on Dr. Ed's comment that Trump should go after Antifa like the J6 insurrectionists.
Brett, Riva, Dr. Ed and RedPride all jump in to push back that Antifa is totally an organization and the equivalent of the J6 insurrectionists (Which itself wasn't an organization!)

These are the kinds of chuckleheads that are still on about Antifa. I don't think you have the right of it at all.

[Absaroka]

Yep. we disagree!

I'm hearing echoes of the Italian-American Civil Rights League.

[Sarcastr0]

You are not usually the type to res ipsa your way around needing evidence.

As always, I do appreciate this historical nugget.

[Absaroka]

Well, my sense is that the wiki article is largely correct: "Antifa is not a unified organization but rather a movement without a hierarchical leadership structure, comprising multiple autonomous groups and individuals. The movement is loosely affiliated and has no chain of command, with antifa groups instead sharing "resources and information about far-right activity across regional and national borders through loosely knit networks and informal relationships of trust and solidarity." According to Mark Bray, "members hide their political activities from law enforcement and the far right" and "concerns about infiltration and high expectations of commitment keep the sizes of groups rather small."

So, is it a monolithic organization like, I dunno, the Sierra Club? Nope! On the other hand, if you hear that the usual Antifa sources are talking about a big presence at this year's May Day festivities in downtown Seattle, reasonable people might decide it's a good day to work from home.

For another historical analogue, there wasn't one Klan, but if you read 'the KKK is planning blah, blah, blah in Biloxi', you didn't worry exactly which Kleagle or Klavern or whatever were going to participate. A flock of birds doesn't have bylaws, but they do engage in organized behavior.

Consider the Tea Party. Like Antifa, it wasn't a monolithic organization, but it wasn't just a spontaneous agglomeration of particles random walking into each other either: "The Nationwide Tea Party Coalition also helped launch the Tea Party movement via a conference call attended by around 50 conservative activists.". But like Antifa "The Tea Party does not have a single uniform agenda. The decentralized character of the Tea Party, with its lack of formal structure or hierarchy, allows each autonomous group to set its own priorities and goals. Goals may conflict, and priorities will often differ between groups". Yet we still say 'The Tea Party did this or that'. (quotes from the eponymous wiki article)

The Tea Party/Antifa/Mafia/KKK/militias are what they are and do what they do. Quibbling about whether they should be called 'movement' or 'organization' or whatever doesn't change the facts on the ground. Both sides tend to view 'the other' (for Brett, Antifa, for you perhaps 'Right Wing Militias') as more organized and dangerous than they actually are, while minimizing the converse. But semantics doesn't change what either actually do.

[David Nieporent]

The Klan was a hierarchical organization with bylaws.

[Absaroka]

I just remembered another great example: the Cajun Navy. It got its moniker in 2005 in the aftermath of Katrina, where various people coordinated in various degrees to rescue a lot of people, and it has been referred to by that name since them, but formal organization (to the extent it is) didn't happen until years later.

[Sarcastr0]

You were describing a brand, not an organization. The kids might call it a meme, though that's kinda overinclusive.
You accurately made an analogy to the Tea Party, though they had a lot more…grift-facing aspects of their brand (Tea Party Express, etc.)

But if someone said ‘time for Biden to go after the Tea Party’ I’d think that was nuts as well.

But then you went here: “Tea Party/Antifa/Mafia/KKK/militias” which equates a whole lot of different things with different levels of organization.

Mob Boss is a thing. Grant Wizard is a thing. There is no Antifa Tzar.

[Absaroka]

"The Klan was a hierarchical organization with bylaws."

That isn't my understanding, or wiki's:
"The third and current manifestation of the KKK emerged after 1950, in the form of localized and isolated groups that use the KKK name."

I know I have read news over the years where Billy Joe Bob is the Grand Imperial Wizard of this KKK splinter group is feuding with Cletus Joe who is the Exalted Cyclops of some other group. In the wiki article the section 'Later Klans: 1950s–present' comports with my memory, for example ' According to an FBI report published in May 1965, the KKK was divided into 14 different organizations at the time with a total membership of approximately 9,000'.

[Randal]

And the Tea Party had an official House Caucus!

You guys are paranoid nutcases. Paranuts.

[David Nieporent]

OTOH I’d guess the Sinaloa Cartel probably isn’t incorporated and doesn’t publish bylaws, but reasonable people would call it an organization.

While I have no personal experience of any sort with the Sinaloa Cartel — or any other cartel — my belief is that it is a hierarchical, top-down business for which one could draw up an organizational chart if one wanted to take notes on a criminal fucking conspiracy. People at the top give orders; people lower down take them and execute them. (They execute people, too! But I meant carry out the orders.) Money flows between the levels. It has assets and infrastructure.

In contrast, antifa has no structure, no leadership, no decisionmakers, no members. It's about as organized as a group of guys from the neighborhood who frequently meet up at the park on weekends for pickup games of… whatever. Soccer, basketball, softball. You show up, or not, at your own discretion. If enough people show up, a game gets played; if not, it doesn't. Once you're there some coordination has to be done — you can't have four people playing shortstop and nobody pitching — but it's all informal.

[Bruce Hayden]

Someone is renting busses and transporting them from all over the country to where they can be advantageously employed, and someone is paying for their matching black ballistic shields and helmets, adorned identically with red AntiFA and Chinese hammer and sickle symbols. And someone was able to shut them down 1/7/21, after their last op, at the Capital, on 1/6, where they dressed as MAGA, arrived on busses, incited violence, departed, and were never investigated or arrested. Many expect their leash to be released this summer, to burn down Blue cities (where the Dems in power won’t allow their police to touch them), as the election approaches, only to be leashed again if the Dems win.

[David Nieporent]

Nobody is renting buses and transporting antifa from all over the country. This is all Fox News delusion, usually with antisemitic claims that Soros is the one pulling the strings.

[Sarcastr0]

Bruce, did it occur to you that there were young twitter idiots with more leftism than sense in most every city?

No need for ‘ops’ my melodramatic friend.

someone was able to shut them down 1/7/21, after their last op, at the Capital, on 1/6, where they dressed as MAGA, arrived on busses, incited violence, departed, and were never investigated or arrested
Ah yes, Jan 06 was a false flag. Because you believe in all the bangers.

Many expect their leash to be released this summer, to burn down Blue cities
Many can’t handle a chaotic world and invent puppetmaster conspiracies rather than think that things just happen sometimes.

See also 'every mass shooter is an MK Ultra CIA op'.

[Nige]

'after their last op, at the Capital, on 1/6, where they dressed as MAGA, arrived on busses, incited violence, departed, and were never investigated or arrested'

There was an antifa counter-protest organised for Jan 6th. The called it off because they didn't want to get caught up in any trouble. But you still need a bogeyman.

[Krychek_2]

Although this thread is now almost a day old, I’ve been traveling and am just seeing it now, over 200 comments in. And the thing that immediately jumped out at me is that THE VERY FIRST group of comments is right wing what abouting. It’s almost as if some on the right are genetically incapable of having a conversation about Trump and his legal problems without changing the subject. I guess that’s a sign of not having a cogent legal argument in support of Trump and an acknowledgement that yes, he really is legally indefensible, so changing the subject is their only real strategy.

[I woke up when Hillary talked about Reconstruction]

But they didn't. 70 years since UN Declaration on Human Rights and several of the most basic are fought against on here

[ObviouslyNotSpam]

The who?

[you_are_fucking_nazi_idiots]

You nazi twats really think there should be an insurrection exemption for old nazis that you like. You are not just traitors, you are stupid fucking traitors.

[JudgesFed]

Calabresi should just save everyone time and formally announce he’s voting for/endorsing Trump. The charade of being a “never trumper” while also writing puff pieces is truly pathetic.

[Riva]

One can be entirely opposed to President Trump’s politics and still be sickened by these abuses of law and power, at least if one has integrity.

[Martinned2]

Abuses of law and power like [checks notes] enforcing the civil and criminal laws as written?

[defaultdotxbe]

And how many other people would be facing stiff fines and jail time if we enforced the civil and criminal laws as written against everyone? It isn't so much that Trump is facing justice, it's that he seems to be the only one that has to face justice.

[Dr. Ed 2]

Note that NY was very quick to tell all the other developers that it was a Trump-only prosecution and that THEY didn't have to worry about doing business in NY.

[Sarcastr0]

No, they said Trump did crimes and if you don't do crimes you'll be fine.

Are you somehow getting more disconnected from reality these days?

[Theendoftheleft]

You’re lying… again.

Once more, you didn’t read the case and you still don’t understand what kind of law 63(12) is, and so what kind of fraud it concerns. Otherwise you wouldn’t be talking about ‘crimes’.

https://www.theguardian.com/us-news/2024/feb/18/trump-verdict-new-york-business-governor-kathy-hochul

But feel free to double down here if you want, Tankie. It only helps to further establish your disingenuousness.

[Riva]

And James quite literally campaigned on “getting” President Trump. No specific crime in mind, she’ll find it later. Years of investigation searching for a “crime” or anything, and here we are. Yeah, no criminalizing politics here. That’s crazy talk.

[David Nieporent]

James is NY AG; AGs do not prosecute crimes. She sued him for violating the law, after Michael Cohen had provided evidence of his lawbreaking.

[Riva]

She ended up targeting him by perverting the civil law fraud statute, when she had nothing else after years of looking. That selective use and abuse of the process in that civil action was no more justified than the lawfare criminal actions other prosecutors are pursuing.

[David Nieporent]

She filed a lawsuit. The courts so far have agreed that the lawsuit was an appropriate use of the statute. Where does "perverting" it come in, other than that it hurts your orange god?

[Riva]

The use of state resources on a selected political target; zero fraud (the judge ignored materiality when finding “fraud,” the statute does not remove this requirement); no victim (banks testified they were not harmed and would gladly do business with President Trump again);a trial with numerous procedural violations; comically undervaluing properties; ignoring clear disclaimers, distorting the nature of high level business negotiations; a shockingly outrageous confiscatory fine and judgement. Somehow, I suspect that if the victim here were not President Trump, your views would be a little different. Or maybe you’re a pure marxist who likes a good kangaroo court police state trial? who knows? I don’t really care.

[David Nieporent]

The fact that she (according to you) spent years looking for a way to get him would prove exactly the opposite of what you think it does: it would prove that she wasn't willing to just do whatever it took to get him, but needed to find a legitimate vector of attack.

zero fraud (the judge ignored materiality when finding “fraud,” the statute does not remove this requirement);

(1) Although it's fine to call this a "fraud" case when speaking colloquially, it isn't a fraud case, and the judge did not find fraud.
(2) You don't get to invent your own elements of the law.
(3) The notion that a borrower's financial condition isn't material to whether a bank issues a loan is, to borrow a phrase, galactically stupid. The notion that the truth of a financial statement that the bank expressly mandated he provide as a condition of the loan isn't material is whatever is beyond galactically stupid. Dr. Ed-stupid, I guess. Of course it was fucking material.

no victim (banks testified they were not harmed and would gladly do business with President Trump again);

Trumpkins keep saying this despite the fact that they're making it up.

a trial with numerous procedural violations;

Name one.

comically undervaluing properties;

Never happened, which is why Trump couldn't and didn't put in any admissible evidence that it happened.

ignoring clear disclaimers,

Also didn't happen. The disclaimer that Trump attempted to rely on did not say what he claimed it said, and also it's ludicrous to think one can lie to a bank and then say at the bottom, "Psych! Ignore everything I just told you! I had my fingers crossed when I wrote that!"

distorting the nature of high level business negotiations;

You're just handwaving at this point, because you've got nothing.

a shockingly outrageous confiscatory fine and judgement. Somehow, I suspect that if the victim here were not President Trump, your views would be a little different. Or maybe you’re a pure marxist who likes a good kangaroo court police state trial? who knows? I don’t really care.

Yes, I am a pure marxist. You caught me. The libertarian thing is just a façade.

[Riva]

She Campaigned on “getting him,” no idea what during her campaign, but that doesn’t matter to the statist hacks, show me the man and I’ll show you the crime. As for the rest of your drivel, nice gaslighting, but your distortions/lies don’t really matter, the record does, and the record supports my contentions, not yours. And, I only noted that you may be a marxist, although you have no issue with the state abusing its power to attack citizens, only because you happen to disagree with their politics. And I take it from the length of your rant that I hit home a little too close for your comfort.

[Sarcastr0]

Riva, you haven't made a legal argument. After your last set of ipse dixit got destroyed by DMN.

And look up gaslighting; it's more than 'saying stuff I disagree with.'
Just because some of the more thoughtless on here like to throw it out without knowing what it means doesn't mean you need to go down that dumb road.

[Riva]

Thought it was clear but since it's not, at least for you, I don't just disagree with him, I'm pointing out that he's distorting or lying about the legal and factual record at the "trial" and that he is distorting or lying about James' political crusade against President Trump. You two though are just fine with the state targeting political opponents. Ok that's your view. I happen to be against that. Would be even if that repressible snake Biden were subject to the same treatment. And incidentally, he wasn't although clearly violating the same federal law they accuse President Trump of violating even though the corrupt snake admittedly and improperly took classified material and wasn't president at the time.

[Sarcastr0]

Your original argument of 9 hours ago listed irregularities in the trial, all of which DMN swatted down. No wonder you switched goalposts to more vague foot stamping like this comment.

You do disagree with DMN, though - you don't like what he's saying, so you're accusing him of lying. Without actually highlighting any particular thing you think he's lying about.

That's disagreeing, asshole-style.

Your entire counterargument based on motive. Which alone gets you nowhere and is utterly immaterial to his going through the facts and law.

[Riva]

If it's one thing you seem to be an expert on it's being an a-hole. There were irregularities at trial as other non a-hole experts have opined, noting that the judge used criminal statutes and case law, subject to the beyond a reasonable doubt standard, to sidestep the need for damages as an essential element of fraud and that courts traditionally have required a showing of reliance before punishing false statements in fraud cases involving similar statutory language. It has also been noted that the judge improperly used the lower preponderance of evidence standard instead of the clear and convincing evidence standard normally used in civil fraud cases, citing a car accident case as authority. We could also discuss the gag orders and other improprieties; or instead of writing a book, I could just say there were irregularities. I forgot though that you were the arbiter of comment content. Next time I'll run a draft by you and your gaslighting buddy before posting something.

[Nige]

Lol when Trump does it it's not crimes, and you'll claim not to be a Trump supporter.

[I woke up when Hillary talked about Reconstruction]

Well, I can see why you didn't actually quote or cite as you should have done.

sorry, can't believe that 'crime' nonsense about Trump

"Crime in New York is increasing. As of mid-November, crime was up 29.1 percent in New York City from last year. Felony assaults are up 14%, rapes are up 11% and robberies are up 35.5%. The highest number of crimes, up 41.7, are in the subway."

[Nige]

Believe it or not those are not the crimes Trump was accused of.

[David Nieporent]

You can tell when someone is doing politics vs. analysis by whether they use one year fluctuations in crime statistics.

[Riva]

Enforcing the laws as written? Like the Presidential Records Act? Fani's insane warping of Georgia's RICO provisions? Bragg's made-up election finance violation? Smith's perversion of the anti-shredding provisions of the Corporate Fraud and Accountability Act? Anything but the law as written.

[Alpheus W Drinkwater]

Yawn. Show your work, back up your assertions, then maybe someone here will take your comments seriously.

[Riva]

It's a comment. Not a court brief of a law review article. If you want to learn more about Smith's misuse of the law, read the S.Ct. briefs.

[Sarcastr0]

You excluded the middle between a court brief and lame ipse dixit.

You just look partisan and thickheaded posting grand pronouncements in defense of Trump with zero facts or logic to back it up.

[Riva]

But if you want a hint on how the gov’t is abusing the statutory language in the Smith case and others (see Fischer v US), the section title is “Tampering with a witness, victim, or an informant” And guess what, the J6 prosecutions and Smith case have nothing to with witnesses, victims, or informants. Not a shredded document in site.

[Sarcastr0]

This started looking like a factually understandable argument and ended in not even English.

[Riva]

It's called a typo. So if I wrote, "you're a shithhead" everyone would understand I meant you're a shithead, except you of course, because, well, you're a shithead.

[David Nieporent]

Or, perhaps you can't do statutory analysis by looking at section titles. 1512(c) says

"Whoever corruptly—

(1)alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2)otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both."

Setting aside the issue in Fischer — whether certifying the presidential results is an "official proceeding" — the statutory provision clearly is not limited to "witnesses, victims, or informants."

[Riva]

This a provision of the Sarbanes-Oxley Act enacted following the Enron scandal that criminalizes the destruction or impairment of records in response to an investigation. Prior to Jan 6, it was NEVER used outside of the context of evidence impairment. The prosecutors here, Smith included, are perverting the section into some sort of new catch-all obstruction provision divorced from its legislative purpose, history and language. Now, you may be someone who likes the expansion of state police power to target disfavored groups. I don’t.

[Riva]

No gaslighting response to my comment David? I'm losing faith in you.

[Randal]

It's brave of you Riva to so publicly acknowledge your psychological dependence on the perceived infalliability of your cult hero.

[Riva]

That’s your response to my comment? Just an inane insult? I guess that’s really all you guys have.

[Randal]

Inane insult! It wasn't meant that way. This is the crux of the problem. People aren't thinking for themselves anymore. Or maybe they never really were, but this is the first time a nationwide cult has taken advantage of mindless Americans to rise up and seize the presidency.

We've always had criminal prosecutions of criminal politicians. I could list them all again but what's the point? Your brainwashing will reject it, as has been demonstrated.

No, the thing that's new here is that the cult members trust their cult leader more than they trust the American justice system. That's the sign that we're becoming a fascist and/or banana republic: one side literally thinks their leader should be above the law.

[Randal]

But at least you admitted to being psychologically compromised by Trump. That's step one of twelve.

[you_are_fucking_nazi_idiots]

The insurrection act. Does Trump's spooge in your belly make you brain damaged?

[Riva]

What the f do you mean the insurrection act? Do you even know what that is?

[Kleppe]

"enforcing the civil and criminal laws as written?"

The NY criminal case requires at least four novel legal theories in order to succeed. That isn't "enforcing [laws] as written". That's bending and twisting the law as hard as they can to prosecute a political opponent.

[Sarcastr0]

You of course have no idea if this is true. You just say it because you heard it on 4chan or something.

[Stephen Lathrop]

Kleppe, speaking of bending and twisting, where is your apology for the bending and twisting you did? You not only misquoted me to reverse my meaning, but you also took that as a false basis to accuse me of advocating violence, which I have never done.

Quote what I said, and quote what you said. Then apologize, as I have already requested 3 times. Out of a sense of mercy, I have omitted to quote here what you did. Hereafter, until you apologize, I will repeat it all verbatim, every time I see a comment from you.

[Michael P]

Martinned doesn't support prosecutorial discretion or understanding what statutes actually mean. Noted.

[QuantumBoxCat]

"But, I specifically said then, and I continue to believe now, that no former President of the United States should ever be sent to jail because of the effect that doing so would have on the 35% to 40% of the U.S. population has in revering a particular President who may have committed a crime."

What?! A former President can commit rape and murder and Calabresi believes they should not be sent to jail because of the effect it would have on his supporters.

[Dr. Ed 2]

It's the concept of greater good. Like the exclusionary rule.

[SRG2]

Or the concept that people like Dr Ed mustn't be upset if they support a rapist and crook so the rapist and crook must be allowed not merely to skate, but become president (again).

Da Breeze is arguing that certain politicians are above the law. That is so invidious that I am not surprised that a law professor like Da Breeze would advance such an argument,

[Dr. Ed 2]

Can you say "Bill Clinton"?

He is a rapist (Juanita Broaddrick) and he is a crook (Whitewater, Clinton Foundation, and everything between). And Shillary was allowed to run.

[SRG2]

Did any court civil or criminal find Clinton guilty of the rape?

What was the crookery over the Clinton Foundation? Any indictments? Ditto Whitewater.

But regardless, this is simply whataboutism. And one can expect that you think Clinton should be prosecuted but Trump shouldn't be.

[Sarcastr0]

Deflecting and misogynistic name calling.

What a way to start your morning.

[David Nieporent]

Juanita Broaddrick swore under oath that it didn't happen.

[myself]

It's the concept of having no principals.

[I woke up when Hillary talked about Reconstruction]

again,you are both wrong. Biden made it clear in the SOTU that the attack on Trump is personal. OPEN YOUR EYES. This is a President talking about another President.

[Nige]

What did Biden say that made it personal, and what about it was different from Trump's tendency to personalise everything?

[David Nieporent]

This is a President talking about another President.

It is, definitionally, not, since there's only one president.

[Riva]

Still can’t bring yourself to be courteous can you? But the lawfare against President Trump is directed at his time in office so the corrupt drugged up reptile in the White House is targeting another president in that sense. And before you respond, I was being courteous to that corrupt snake.

[Sarcastr0]

You have no standing to tone police.

[David Nieporent]

Calling a man who holds himself out as a woman "she" may be a matter of courtesy. Calling a former president "president" is not a matter of courtesy; it's just sycophancy. It's correct neither as a matter of protocol nor etiquette.

[Bruce Hayden]

The curtesy runs the other way. Pronouns are part of language because they simplify speech. That’s why they are so ubiquitous in languages around the world. So very often, two people can be differentiated by calling one “him” and the other “her”, based on obvious sexual differences, even if you don’t know them. Calling obvious hims “hers”, and visa versa, just panders to the mentally infirm. And keeping straight who is what, and who is currently using which pronouns, adds complexity and effort to speech, which instead should be minimized. Those demanding their personal pronouns be used by everyone else, in countervailance of the traditional usage of pronouns is privileging the personal whims of the selfish over the efficiency needs of everyone else.

[Sarcastr0]

Each time one of these misgendering things hits the news, it's someone putting in conscious effort to be a dick, not some accidental one-off.

Kinda like the ridiculous effort you are making right now to rationalize being a dick by arguing it make the English language too complicated.

[Nige]

'Those demanding their personal pronouns be used by everyone else, in countervailance of the traditional usage of pronouns is privileging the personal whims of the selfish over the efficiency needs of everyone else.'

I swear to God the funniest/scariest thing about this aspect of the culture war (actually a war against peoples' civil rights and right to exist) is how suddenly pronouns became sacred and inviolable, whereby breaching them is literally about to bring western civilisation to its knees.

[Randal]

Calling obvious hims

Wow are you a dumb shit! I wonder how many trans men you've happily referred to as "him" without realizing it.

Most trans people pass without you even noticing. The ones that don't, well, it's still "obvious," to use your term, what they're going for. So the simple and easy route with the least confusion for everyone would be to just go with it. Otherwise you'd have to keep track of everybody's genome.

[Riva]

Trans men? You mean women? Sorry I don’t play your crazy games.

[Randal]

You do without realizing it, I promise you. I hope that knowledge drives you (increasingly) crazy.

[Riva]

No, calling a man who holds himself out as a woman "she" is just insane. Referring to DJT as President Trump is courteous.

[Krayt]

Rape and murder would make his supporters fall away rapidly.

Trumped up bullshit for the purpose of harming a political enemy, with attendant abuse of the investigative power of government, not so much.

[Nige]

Well, they seem quite happy with rape, so I wouldn't be too sure about murder, either.

[Martinned2]

Apart from all the other nonsense in this post, I spotted this:

Trump’s imprisonment where he could easily be murdered by fellow inmates. Trump has thus likened himself, quite reasonably, to Alexei Navalny, the opponent of Russian President Vladimir Putting who was recently murdered in jail where he was held for the crime of running against Putin when he is up for re-election.

I didn’t realise Alexei Navalny was murdered by a fellow inmate.

(Also, this seems to be quite cavalier about the possibility of any other inmate than Trump being murdered in prison.)

[Roger S]

Trump would die in prison, if Biden and his prosecutors get their way in court.

[Dr. Ed 2]

Only because the prison was leveled in the fighting.

[ObviouslyNotSpam]

Also the very un-law-professor-like reference to the "Insurrection Act": "...Trump has not even been charged with inciting a riot under the Insurrection Act, the penalty for which includes disqualification from holding office, and the "crime" of which he is most plausibly guilty."

18 U.S. Code § 2383 is not "the Insurrection Act".

[Dr. Ed 2]

"I didn’t realise Alexei Navalny was murdered by a fellow inmate."

You think Putin personally did it?

The only question I have is how many cartons of cigarettes did it cost Putin?

[Krayt]

Putin no more did it personally than that Shiek did with the reporter in the embassy.

You remember that! Trump said so what, no big deal, and Rush Limbaugh and others defended Trump, also saying no big deal.

So, Trump supporters. Is executing a politicial enemy a big deal, or not?

Oh wait. Trump supporters also said no big deal over Navalney. The US kills people in wars.

So are Trump and supporters only concerned about improprieties of political enemies dying in jail if it is Trump?

[Dr. Ed 2]

You are so obtuse it isn't funny --- Saudi society the same as US?

We all know that Clinton's guilty -- it's Trump compared to Clinton, not the House of Saud.

[Archibald Tuttle]

It would be a freaking mess. Trump would still be entitled to secret service protection. The SS agents would never allow any inmate or guard to get close enough to the President to harm him. SS would also be in charge of food security.

If Trump went to prison while reelected to President, then they would have to move the White House to the prison. All staff, congressmen and foreign dignitaries seeking to see the President in person would have to go through the prison visitors search and screenings. His classified briefings would have to be in a place where prison guards have no surveillance. The communications ready for instant use would have to be the same as on Air Force One. It might be easier to build a fence around the White House in DC and call everything inside the fence a prison.

But, it would make a fun premise for a novel. (hint hint, Tom Clancy take notice.)

[David Nieporent]

Tom Clancy has been dead for over a decade.

[Dr. Ed 2]

I've never read the entire National Security Act but it was written in anticipation of the Soviets nuking us, and it gives the Federal Government some incredible emergency powers.

My guess is that the Feds could simply declare the prison to be a Federal Reservation over which the State of Georgia has no jurisdiction (even if it is IN Georgia, and GA could sue for damages under the taking clause) and they could helo everyone in/out from the nearest military base (over which Georgia ALSO doesn't have jurisdiction.

Or they may even have the power to seize Trump and remove him -- and if not legally, send in a dozen Apaches and have a few A10s flying close air support and see who wishes to challenge them...

Then there's the Selective Service law -- send the judge a draft notice telling him that he might be inducted and looking at 6 weeks at Parris Island and see how his sentence changes....

If the Feds started waving "national security" around, no state would have a chance.

[David Nieporent]

I’ve never read the entire National Security Act but it was written in anticipation of the Soviets nuking us, and it gives the Federal Government some incredible emergency powers.

Dr. Ed strikes again! The National Security Act, besides doing no such thing — Dr. Ed has read none of it, let alone "the entire" act — was written before the Soviet Union even had nuclear weapons.

[Don Nico]

C'mon Martin.
That was beneath you.
Sure Calebresi was hyperbolic. But he was did not say that Navalny was murdered by inmates, only that he was murdered in prison, which most in the Administration believe.

[myself]

How are we supposed to tell when Calebresi is being hyperbolic and when he's being serious?

I've seen doors lying in a landfill that are less unhinged than that rant.

[Don Nico]

You read the words. It is not that had

[Sarcastr0]

Calebresi has sure been on a hyperbole tear in the VC for the past two years!

[you_are_fucking_nazi_idiots]

Party of law and order, unless you are an old nazi fuck.

[Bruce Hayden]

One name: Jeffry Epstein.

[Michael P]

Joe Biden is already experimenting with Dem solutions in Haiti: https://apnews.com/article/haiti-violence-gangs-biden-ariel-henry-crisis-c79d6c330f2074e44c08decaca2bc1f1

[BadLib]

"On top of all of this, there is the fact that Donald Trump has not even been charged with inciting a riot under the Insurrection Act, the penalty for which includes disqualification from holding office, and the “crime” of which he is most plausibly guilty."

It seems that the crimes which Trump is “most plausibly guilty” are some of those related to classified documents – some of those seem to be “open and shut” cases.

[Roger S]

Except that Biden and the other ex-presidents would be guilty of the same crime.

[ObviouslyNotSpam]

Had they also conspired and obstructed, probably yes.

[#FFFFFFPride]

Do you have a theory has to how knowingly keeping and moving classified documents for decades could be done with out “conspiring and obstructing”?

What about having a secret email server and then wiping it clean? How can you setup and maintain a private email server in your house and then have the data wiped clean without “conspiring and obstructing”?

Are you using some novel definitions of "conspire" and "obstruct"?

[Randal]

Um... I don't think you know what "conspire" and "obstruct" mean, Nazi asshole.

Is this what you're proud of?

https://gossiponthis.com/2018/03/23/kentucky-siblings-incest-derrick-lee-clarke-dnea-g-stephens-leitchfield-brother-sister-sex/

[bernard11]

Trump and Navalny.

Calabresi is insane.

[ObviouslyNotSpam]

I think I must have missed the definitive determination that Navalny was "murdered", not to mention by whom.

It is certainly plausible that Putin had him killed, considering that Putin had very likely had him poisoned, and considering that Putin doesn't like to leave jobs un-done. But have we even heard the results of an independent autopsy? At least start there before just assuming Putin murdered him, eh?

[Krayt]

Then there was the other story he was badly beaten and tortured, obviously, so everyone would know what happened to him, and why.

[myself]

Navalny died of natural causes.

And Prigozhin's plane exploded because opened a champagne bottle.

[Don Nico]

As far as I have seen, there was no independent autopsy.

[Sarcastr0]

I can kinda see why the Federalist Society might not want to be associated with this guy.

Except it was for his disavowal of Trump, not his subsequent torrent of badly reasoned melodramatic Trump apologia.

[Voize]

A serious Attorney General would have appointed a U.S. Attorney Special Counsel to investigate Trump for violating the Insurrection Act at 12:01pm on January 20, 2001

Maybe that was actually meant as criticism of Eric Holder, who was acting AG until John Ashcroft's confirmation in 2001, but it seems more likely Prof. Calabresi meant the year 2021 which would make it a stirring rebuke of Monty Wilkinson. Shame on him!

[Bruce Hayden]

His point was that the appointment of Smith by AG Garland was illegal, and violated DOJ rules, as did that of Mueller by DAG Rosenstein. Special Counsels are supposed to be US Attorneys, who are Officers under the Constitution, requiring Senate confirmation. They thus have independent power, under the Constitution and US statutes, to investigate crimes and indict and try cases. Smith has none. He is a direct employee of AG Garland, informally (because he has no statutory authority, as most everyone else at the DOJ has) utilizing the AG’s power to investigate crimes, and to indict and try cases. The AG, being the 4th ranked Cabinet member and 7th in line of succession to the Presidency. He works directly for AG Garland, and completely lacks any semblance of independence.

[Martinned2]

By the way, prof. Calabresi actually made it onto the Lowering The Bar blog today: https://www.loweringthebar.net/2024/03/is-originalism-bullshit.html

I will just pause here to randomly mention that Calabresi, who is co-founder of the Federalist Society, first opposed the impeachment of Donald Trump and then supported it, and more recently took the position that the insurrection disqualified Trump from holding office, before deciding a month later that no it didn’t. He would not support Trump in the 2024 election, he said then, but recently he called Trump’s New York trial “an unjust political act rivalled only in American politics by the killing of Alexander Hamilton by Aaron Burr,” so maybe he’s rethinking that too? Well, it’s hard to tell what words mean sometimes.

[ConservativeProfessor]

No intelligent person should use the phrase "randomly mentioned" in writing since one must have forethought prior to writing it down, meaning that it is not "random."

[Riva]

It should be noted that the Biden administration's abuses are broader than just the illegal special counsel lawfare. It seems likely that the Fani abuse of law, and likely the NY Bragg joke, were orchestrated by or coordinated with Biden and the democrats. We should be careful, once you buy a police state it's usually yours to keep.

[Sarcastr0]

orchestrated by or coordinated with Biden and the democrats

I fully expect the next Calabresi post to be about this level of fully untethered paranoid fantasizing.

[Theendoftheleft]

You mean like HRC's involvement in the Steele Dossier, Russiagate, etc?

The time for gaslighting and comparable methods of spin is over, Tankie. Your credibility is shot. So is that of your political parties.

[Drewski]

You keep calling people "tankie," but all that word indicates is that you spend far too much time online.

[Theendoftheleft]

I only call one person here 'Tankie'. He's the one of Russian extraction who regularly cheerleads for a totalitarian social re-engineering project akin to the Jacobins and the Soviets in his blog posts here on VC using his real name. I have explained this to him, and to others, on VC before.

The claim that that's 'all' the word indicates, coming from you, obviously means less than nothing (let alone that you couldn't figure out I call only one person here that).

[Nige]

'I have explained this to him, and to others, on VC before.'

It's worth making you repeat it because it's so hilariously fucking stupid.

[Sarcastr0]

I'm not going to see any of that guy's 'explanations.'

He's so much more boring a zealot than Ed; I find him a pro block.

[Nige]

He is quite repetitive.

[Nige]

I called him tankie once, and he immediately decided to start parroting it. He does that a lot. He's not a tankie, by the way, he's a typical right wing weirdo.

[Brett Bellmore]

You're so lame at this point. The extensive connections between Willis' office and the administration prior to and during the prosecution are already public knowledge, with even Newsweek reporting on it.

A fraction of this much would have you convicting Trump.

[Michael P]

No, he doesn't even pretend to be consistent in how he applies rules. He's explicitly and unabashedly partisan in having double standards.

[Sarcastr0]

You think the Biden Admin is secretly behind all the Trump legal troubles? Nah you don’t bother with that level of consideration. Just attack commenters and comments and leave the insane paranoia to others.

[Michael P]

You sure need those straw men to have anything you can argue against. I'm just reminding everyone that you proudly declared that you wouldn't criticize people on the left for doing the same things that you criticize the right for, because there are plenty of others who will criticize the left.

[Sarcastr0]

"Orchestrated by or coordinated with Biden and the democrats" is what I'm taking issue with, and what Brett is defending.

So either you are too lazy to read the comment threads you reply to, just parts of individual comments. Or you don't understand what a strawman is.

I'm going with both.

[Sarcastr0]

Meeting with White House Counsel to pass down Biden’s orders to prosecute Trump.

Your conspiracy is ever growing.

[Michael P]

You sure need those straw men to have anything you can argue against. Attributing imaginary claims to others makes you sound deranged.

[Sarcastr0]

Your accusations would have more weight if it wasn’t extremely clear you didn’t read the comments I am replying to.

Not a lot more weight - you've developed a history of being more bomb-thrower than thinker on this blog.

[Michael P]

There's a difference between "orchestrated by or coordinated with Biden and the democrats" and "pass down Biden’s orders to prosecute Trump". You call pointing out that difference bomb-throwing, I call it basic reading comprehension. What passes for your A game doesn't require serious thought to counter, so I don't bother.

[Nige]

They're both the same in the sense that there's no evidence for either.

[Sarcastr0]

Among other dumbass things in this post, I said you had a reputation as a bomb thrower, not any particular pointing out of anything.

Yet more evidence you don't like to read for context, you just like to post.

[Nige]

'Straw men,' yet another term you lot don't understand. Are you, ike, physically cutting bits of your brains out with blunt rusty knoves in order to function like this?

[Alpheus W Drinkwater]

"Straw man" quickly approaching "gaslighting" as the term most misused here.

[Randal]

I recently realized, when Michael P complained of psychological abuse, that actually “gaslighting” is being used correctly… from the perspective of the accusers at least.

Their psyches are carefully constructed fantasies based on fear and grievance and supported by a scaffold of lies concocted and evangelized through the cult of MAGA.

So yeah, anyone who engages them with facts and reality is psychologically dangerous. It probably does feel like gaslighting to have your brainwashed belief system called into question.

[David Nieporent]

And by "extensive connections," you mean a grand total of two meetings six months apart in 2022.

[Michael P]

That. Plus the letters. Plus the deputy DA's partner having a history of working with Biden's campaigns, and that same deputy DA getting paid by a Biden White House aide. And that's just what we know of.

[Sarcastr0]

Resorting to cork board and string shit.

And you still gotta hand waive ‘that we know of’ to get there.

[Michael P]

Deny harder, Gaslight0. Just like you denied that there are any problems at the southern border (except enforcing immigration law), that there has been a general crime wave in Dem cities, that Trump should be on Colorado's ballots, that there was no conflict of interest in the GA RICO prosecution, and more. Reality keeps proving you wrong, and still you complain about simple facts and pretend that DMN was anything other than ignorant (or lying) in his claim that Nathan Wade's two meetings with the White House were the only connections between Willis's persecutions and the White House.

[Sarcastr0]

“Reality keeps proving you wrong” is hilarious, considering how untethered your angry list is from what I have posted, in reality.

I don’t and never have denied that there was any problem at the southern border.
I said the borders are not open, and that nothing the Admin is doing goes against immigration law.

a general crime wave in Dem cities
Yeah, that one is bullshit. Which is why you had to cherry pick subway stats from a single month.

that Trump should be on Colorado’s ballots
Always said he should be.

there was no conflict of interest in the GA RICO prosecution
I haven’t even weighed in on this one, I think you’ll see. Not something I know about, you see.

You, simpleton you are, can’t understand a non-maximalist position.

[MollyGodiva]

No one is above the law. Many other developed countries have prosecuted former heads of state for crimes, and sent them to prison. The fact that their supporters will have mental anguish that their politician is in prison is the worst reason to give immunity.

The stealing and hiding of classified documents is also a crime that he should not get immunity for.

Also, and it is sad that this needs to be said. Trump's attempted coup lasted weeks and included the fake electors, pressuring local officials to ignore election results, and demanding that Pence throw out Biden EC votes. The speech and attack on J6 is just a part of the overall attempted coup.

[Roger S]

Many other countries? Yeah, Russia, Ukraine, Pakistan, Brazil, and a couple of Latin American countries. Not countries to emulate.

[MollyGodiva]

Wow. Just wow. Immediately below your comment are a list of peer countries that have jailed former heads of state. You posted over an hour after those.
You guys just can't stop making shit up. I had a guy the other day argue about what the 14A says. Not the interpretation, the actual words.

[Theendoftheleft]

'The speech and attack on J6 is just a part of the overall attempted coup'.

Question begging.

And not even 'insurrection', but 'coup', yeah? Funny, why hasn't DT been tried for that yet? Why haven't they brought charges in accordance with 2383 for insurrection either?

Do you think people in the rest of the world believe your crap anymore? Do you have any idea what we, your allies, think about what you're doing with these trials and accusations---even though most of despise DT?

[ObviouslyNotSpam]

It fits the definition of "insurrection" under the 14th Amendment, as more than one court has now held. But as Trump was never charged with the crime of insurrection (18 U.S. Code § 2383), obviously the same cannot be said of his criminal culpability. Is there an applicable statute of limitations for §2383?

If it would help people like you accept reality, perhaps a new indictment under the federal insurrection statute wouldn't be a bad idea? Or would you just manufacture some reason why that couldn't happen, either...

[Theendoftheleft]

What is the 14th Amendment’s ‘definition’? Why did the Colorado Supreme Court find it necessary to construct its own definition, rather than just use the 14th’s express one?

The answer is obvious: the 14th neither has one of its own nor criteria of application for one either.

You’re flipping the 2383 point around on me? It’s a real question. Why don’t they bring 2383-based charges against Trump? They’re the ones who are adamant that he committed an insurrection. So, what’s holding them back? It’s NOT the statute of limitations…

It would help if people like you actually knew what you were talking about, rather than just lie all the time. To that end, it would be helpful more generally if American idiots like yourself got your heads out of your own asses. You would then be able to see why we, your allies in the rest of the West, think you’re becoming a banana republic.

OK, spam?

[Roger S]

No, no finding of insurrection under the 14A, according to all nine Scotus justices.

[David Nieporent]

The justices said that states can't disqualify people from the ballot for federal elections. That's all they said.

[MoreCurious]

Try reading the opinions before you comment on them. It might make you look less foolish.

[Krayt]

part of the overall (pattern for something), building evidence!

Go ahead, make that case.

I don’t doubt you will quickly don blinders to avoid a much larger pattern of evidence of years of using the investigative power of government against a political enemy, in many, many initiatives.

He may deserve it. America does not. And facetious lies of pure, noble, disinterested concern for rule of law are evidenced by a much larger pattern to the one you glowingly look on for support.

[Nige]

'He may deserve it'

I.e. he may be guilty.

[Riva]

Enough with the inane nonstop "no one is above the law." No one is fact arguing that. If there is immunity, it is grounded in the Constitution, the Constitution is the highest law, so no one is saying anyone is above the law. And disagreeing with the immunity argument doesn't change that. Disagree if you want but the rebuttal isn't the asinine "no one is above the law."
And no one is arguing that the president is above the law with respect to the documents case. He was the president (under the aforementioned Constitution) with full declassification power in office and covered by the Presidential Records Act after leaving office. Laws by the way. Again disagree as to the scope and interpretation of the Act or the Constitution if you want, but stop with the lame "no one is above the law" because no one is claiming that.

[David Nieporent]

No one is fact arguing that.

You and Trump are. Not only are you incompetent at law, but you're incompetent at the English language. Immunity is not a statement that one didn't break the law; it is literally the status of being above the law.

[Riva]

You don't really understand that any immunity would be derived from the Constitution, do you? And that the Constitution is the highest law? So if you want to argue that constitutionally recognized immunity for the president for official acts by the Supreme Court (if they so rule) renders someone "above the law," you've proven that you're not afraid of looking like a complete idiot, if nothing else.

[Alpheus W Drinkwater]

If indeed the Constitution grants someone immunity, it is literally placing that person above the law. That's why the presumption would be that in most cases the constitution does not grant immunity. And when courts have found it does, it is quite limited, as in the case of the President being immune from some types of civil liability.

[Riva]

The Constitution is the highest law and immunity existing by virtue of the Constitution does not place someone above the Constitution. A president with criminal and civil immunity for official acts would still be subject to the Constitution. So I really don't understand what you mean, unless your contention is that the Constitution is not the highest law or that presidential immunity (if it is determined to exist by the Court in this context) would have some source other than the constitution, which source would supersede the constitution? What exactly would that be?

[Martinned2]

That reminds me:

A French court of appeals on Wednesday, May 17, upheld a prison sentence of three years, including two suspended, against former president Nicolas Sarkozy for corruption and influence peddling. The court maintained he should serve a one-year detention sentence at home with an electronic bracelet and banned him from public office and from voting for three years over his attempts to secure favors from a judge in a case uncovered by wiretapping.

https://www.lemonde.fr/en/france/article/2023/05/17/french-court-upholds-three-year-sentence-for-ex-president-sarkozy_6026961_7.html

[Riva]

Not sure what your point is. I have no idea if there is any real merit to the French proceedings. Could be they're suffering a similar criminalization of the law for political purposes. Their record in the French Revolution wasn't exactly an example of the objective application of the rule of law.

[Martinned2]

Or this:

Israel’s former prime minister Ehud Olmert has started his 19-month prison sentence for bribery and obstruction of justice, becoming the first Israeli premier to be imprisoned and capping a years-long legal saga that forced him to resign in 2009 during the last serious round of Israeli-Palestinian peace talks.

https://www.theguardian.com/world/2016/feb/15/ehud-olmert-israeli-ex-pm-19-month-prison-bribery

[Riva]

Israel seems to be experiencing a similar lawfare problem as the US. I'll concede that point.

[Martinned2]

That doesn't look good...

Prosecutors have raided the offices of Japan’s governing Liberal Democratic Party amid a political funding scandal that has sent Prime Minister Fumio Kishida’s approval ratings to some of the lowest levels in the country’s post-war history.

Investigators from the Tokyo District Public Prosecutors’ Office searched the offices of two LPD factions associated with former Prime Minister Shinzo Abe and former secretary-general Toshihiro Nikai, local media reported on Tuesday.

https://www.aljazeera.com/news/2023/12/19/japanese-prosecutors-raid-ruling-party-offices-amid-slush-fund-scandal

[Martinned2]

Elsewhere in Asia:

South Korea's former President Park Geun-hye has been sentenced to 24 years in jail after she was found guilty of abuse of power and coercion.

https://www.bbc.co.uk/news/world-asia-43666134

[Randal]

Trump's at zero risk of going to prison. Get a grip.

[Life of Brian]

Ah, so this "no one is above the law" meme we've been hearing for the past years (and even reflected in this thread!) will just come to a screeching halt if any of the various [checks notes] felony prosecutions were to reach the sentencing phase?

Or what is your theory exactly?

[Nige]

This is the stupidest effort at a gotcha I've seen in a while.

[MollyGodiva]

He might. Stealing and hiding classified documents is quite serious.

[Theendoftheleft]

Tell that to HRC---including the obstruction of justice bit when you intentionally try to destroy your files.

[#FFFFFFPride]

But didn't you hear? The unbiased, nonpartisan civil servants declared that "no reasonable prosecutor" would pursue Hillary and good ol' Dementia Joe was just too addled and demented to sit in front of a jury for his numerous crimes.

Pretty neat how these unbiased, nonpartisan civil servants drew these conclusions.

[ObviouslyNotSpam]

Tell that to Republican FBI Director James Comey, I guess.

[Frank Drackman]

Parkinsonian Joe will be dead by the time "45" becomes "47"

[not guilty]

"Trump’s at zero risk of going to prison. Get a grip."

I wouldn't be too sure of that. A conviction in Georgia under that state's RICO Act carries a five year minimum sentence of imprisonment. And in the D.C. prosecution I can see Judge Chutkan sending Trump to prison immediately upon sentencing. See 18 U.S.C. § 3143(b).

[santamonica811]

I assume they mean, "No imprisonment in a federal facility. Some form of home confinement would seem appropriate for a guy about to hit his 80s, for a non-violent crimes. Not in a $10,000,000 NY penthouse or opulent Florida mansion. But in a home that is large enough to house Secret Service, and no online or phone connections, other than an hour or so per day (or whatever people get in minimum security prisons nowadays).

I think even the most robust Trump haters don't think he can be safely housed in even the most gentle Club Fed . . . there's always a non-zero risk of another inmate acting suddenly and violently. But there are plenty of ways to keep a convicted felon housed both safely and securely, while ensuring that his freedoms are restricted to roughly the same extent as other convicts in his situation.

[Don Nico]

"no online or phone connections, other than an hour or so per day (or whatever people get in minimum security prisons nowadays)."

SM,
That is completely inconsistent with POTUS's duties as Commander in Chief. Also, by law POTUS gets a 24-hr per day military aide.

Of course, he can be "forced" to waer an orange suit.

[Dr. Ed 2]

I would be very surprised if someone didn't sit Chutkan down and explain to him why he would not want to do that -- someone senior in the US Marshal's Service whom Chutkan both knows and respects from prior case(s).

Remember what happened after Kent State in the 1970s? And that was spread across the whole country, this would all be concentrated in DC.

[David Nieporent]

Chutkan is a woman.

[Dr. Ed 2]

CARTER pardoned the draft dodgers -- Ford only gave them an amnesty and that if they did two years public service work. Big difference.

[Frank Drackman]

Don't forget William Juffuhsun Clinton pardoning Patty Hearst on his last day in Orifice. It was a Quid pro Blow arrangement.

Frank

[Dr. Ed 2]

Hears is a difficult case, I think Carter did the right thing.

She married a cop -- that was one messed up little girl.

[MoreCurious]

Someone needs to stage an intervention on Calabresi's behalf. Don't any of his friends or family read this garbage and realize how desperately in need of help he is? Whatever he's smoking or drinking or otherwise ingesting needs to be taken away from him.

First of all, I don't recall hearing Biden last night say anything about being "the defender of democracy who would jail former President Donald Trump."

Second, short of murder, no rational, intelligent person believes Trump would ever be sentenced to prison. House arrest with heavy fines and severe restrictions on travel, maybe. But prison? No way, and Calabresi should be ashamed to even raise that red herring. And even if, for the sake of argument, Trump were to be sent to prison, does Calabresi seriously believe he would be left unprotected by the Secret Service?

Third, Trump and Alexei Navalny as soulmates? That's either wildly delusional or a gross misunderstanding of Russia in 2024.

Fourth, does Calabresi actually believe that Trump is spending one penny of his own money either for his campaign or for his massive legal fees? If so, I happen to have the deed for a nice bridge that goes from lower Manhattan over to Brooklyn, and I'd be happy to sell it to Calabresi for a bargain price.

Fifth, I'm dying to hear Calabresi explain why the charges of "mishandling of classified documents are very much of a two edged sword, which is now quite wrongly being used against Trump himself."

Sixth, and finally, Calabresi stresses the importance of "ending the criminalization of political disagreements." The obvious flaw in that statement is that Trump is not being prosecuted for political disagreements, he is being prosecuted for serious federal and state crimes. There is a difference, which I would have thought a law professor would know.

[Roger S]

"Trump is not being prosecuted for political disagreements" -- I thought you were serious until that point. Trump is being prosecuted because he is running for President, and Pres. Biden made it clear last night that he will do anything to keep Trump out of office.

[Sarcastr0]

You're not a serious person, if you ever were.

Your posting on here is driven not by facts or arguments, but by a yearning for your perceived enemies to suffer.

[Theendoftheleft]

‘Your posting on here is driven not by facts or arguments, but by a yearning for your perceived enemies to suffer’.

Projecting much? Look at your REPEATED bullocks about mass illegal immigration, as just one example. It’s largely just a priori, value-laden propaganda, devoid of empirical data.

[Michael P]

Project much? The selective prosecutions of Donald Trump are driven not by facts or arguments, but by a yearning for today's Emmanuel Goldstein to suffer.

Fortunately, the American people seem on track to choose more wisely in 2024 than they did in 2020.

[Sarcastr0]

Yes get into bed with Roger.

Anything but read the indictments.

[NOVA Lawyer]

Funny. The only current or former President who I recall referring to anyone as “the enemy of the people” is…….er….Trump, with his ritual two minutes of hate of “the press.”

He literally said the press, expressly protected by the First Amendment of the United States Constitution, “are truly the ENEMY OF THE PEOPLE!” (emphasis his).

And you are whining that he is Emmanuel Goldstein?

But even assuming your analogy makes any sense, it’s because Emmanuel Goldstein was modeled on Trotsky who, while an enemy of Stalin, was viewed by Orwell as not really any better. Hence, Goldstein was just as much a part of the problem in 1984 as Big Brother. He wasn’t actually a hero, he was just an equally bad person who was useful to the totalitarian government as a villain after being a participant of, if not the architect of, the totalitarian takeover of the state.

If your friends are comparing you to Emmanuel Goldstein, they may not be your friends.

[SRG2]

I can see how wishing to punish someone for trying to steal an election (partly by claiming that the other guy did it) looks like being prosecuted for political disagreement, but the nature of the disagreement matters.

Hamas is currently being punished for political disagreement with Israel, I note.

[Theendoftheleft]

Didn't Hamas murder and rape a whole bunch of people...? Or is it merely a matter of political disagreement about whether murdering and raping, or at least murdering and raping of certain people, is permissible or not?

In the American context, your various courts have brought these cases precisely because DT is running again. More civilised Western countries have a political disagreement with the USA about this: we almost uniformly think these shows trials are a joke and the sign of a banana republic; American Blue Teamers and NeverTrumpers seem to think not.

[SRG2]

The point is it's easy to reframe many criminal acts when committed by political actors as political disagreements.

[Theendoftheleft]

Hard to call your 'interlocutor' being beheaded and/or having your penis forcibly inserted into her vagina a form of 'disagreement'.

[SRG2]

Oh, I agree, don't get me wrong, and I am a strong supporter of Israel and its response. But Calabresi's approach lends itself to reframing - and a reframing that would be accepted by supporters of the supposed injured party, as indeed we see with Trump.

[Nige]

Trump raped someone.

[mulched]

Oh my God! Who was it?

[MoreCurious]

Might not be a safe bet to assume it's only one.

[mulched]

Sure, he can list all of them.

[Dr. Ed 2]

So did the Scottsboro Boys...

[Nige]

'More civilised Western countries have a political disagreement with the USA about this:'

Not a single western country, civilised or otherwise, whatever that means, has raised an objection.

[Randal]

More civilised Western countries have a political disagreement with the USA about this

A) America has never been and will never be "civilised" in the European sense.

B) No they don't.

[MoreCurious]

By your count, at least I was serious five out six times. You, on the other hand, showed your lack of seriousness with your one comment. Biden did nothing more last night than confirm that he is running against Trump. All Biden has to do is win the campaign, like he did last time, and that will be all it takes to make sure Trump never again sets foot in the White House. You have a pretty sinister, conspiratorial mind if you think that anything Biden said last night could be interpreted as a willingness to "do anything to keep Trump out of office."

[SRG2]

Take Da Breeze's argument to a reductio ad absurdum.

Trump shoots and kills an illegal immigrant on 5th Avenue. 40% of Americans think he shouldn't be tried for murder. Trump himself claims that he was justified and that prosecuting him would be due to political disagreement over illegal immigration.

According to Da Breeze, that should be enough to allow Trump to escape.

[Roger S]

A man was arrested for heckling at the Biden SOTU last night. If no man is above the law, then Biden should send him to prison for 10 years, just like the J6 protesters.

[MoreCurious]

What color is the sky on your planet?

[Michael P]

We must enforce the laws as written, according to a Very Serious Person up-thread.

[NOVA Lawyer]

This is a stupid response even from you. A grieving father yelled at an inappropriate time in an inappropriate place. He wasn't violent. He wasn't trying to prevent the transfer of power to a newly elected leader. No one claimed that circumstances don't affect prosecutorial or sentencing discretion.

If this guy is let off or given a slap on the wrist, it isn't because he is a powerful person who the system must let go because his supporters are amoral nuts. It's because somebody had compassion for a father grieving the loss of two sons and what he did was a breach of decorum more than anything else.

[SRG2]

Did the man break into the Capitol with a load of rioters, assault cops, etc.?

STFU with your false equivalence B/S

[Intelligent Mr Toad]

Hey, tell it to Bill Clinton. Trump has endured nothing compared to what Clinton suffered when Newt Gingrich test-drove his new Republican House majority after four decades out in the cold.

Eugene seems to have recruited another Beckmesser*-type member: an obviously loopy right-winger to make obviously loopy arguments as obviously loopy as possible. Josh Blackman, now this Calabresi guy.

* See Die Meistersinger von Nürnberg

[mydisplayname]

This post, as well as a recent one by I. Somin (at https://reason.com/volokh/2024/03/08/new-lawfare-article-on-what-the-supreme-court-got-wrong-in-the-trump-section-3-case/) raise valid points. I’m struck, though, by the fact that many recent controversies were settled long ago by judicial opinions which have, for more than 100 years, been deemed “wrong” by those who desire alternate outcome.

Butler v. Perry — which Somin derides as incorrect — had to decide the meaning of the terms “slavery” and “involuntary servitude” as used in the Thirteenth Amendment, deciding that such terms were “intended to cover those forms of compulsory labor akin to African slavery which, in practical operation, would tend to produce like results…” The case also considered the Fourteenth Amendment, deciding that (at least the portions under consideration) were “intended to preserve and protect fundamental rights long recognized under the common law law system” and citing, among others, Jacobson v. Massachusetts.

An originalist would define the terms “insurrection” and “rebellion” as used in the Fourteenth Amendment to mean “something like the Union Invasion into the Confederate States of America which could at the time be called neither a Civil War nor a War against a recognized peer nation consisting of seceded geo-political entities” and would need to arrive at similar definitions for other terms (regarding questioning debts, et c.). Such definitions, made as clear as the meaning of “slavery”, seem important to Constitutional interpretation lest we allow ourselves to wholescale change the intent of the original text: elephants are not hidden in mouseholes.

Yet many political hacks, donning the masque of scholarly lawyering, found a desirable elephant hidden within the word “insurrection” and attempted to coax this menacing phantom elephant into trampling one whom they dislike. Had these hacks selected terms like “fifth column” or “enemy of the people” rather than “insurrectionist” we would more clearly see Donald Trump’s similarity to Sergei Kirov and would more easily compare the political hacks to Joseph Stalin and the NKVD: ultimately, no one is safe from the danger posed by empowered political hacks who delight in willfully contorting the law to suit their own purposes.

I agree with the author’s conclusion that “[t]he media, the academy, and the judiciary should come together and do this country’s democracy a big favor by ending the criminalization of political disagreements, which threatens to become like the French Revolutionary Reign of Terror. Our 235 year old constitutional democracy has never been in greater danger.” The French Revolution pales in comparison to the Great Terror of 1937.

[Theendoftheleft]

It threatens to become like the Reign of Terror in large part because quite a few Blue Teams consciously adopt Jacobin tactics. Leftists in unis and media do so as well. That's why they won't come together now.

This is no exaggeration. Americans must learn exactly what the Jacobins did, and more importantly HOW they did it, to be able to appreciate that the exact same things and tactics have been used against the American people since even before the Biden administration's onset.

When there are conscious efforts to nullify the shared paradigms for determining what the constitutional and legal rules even are (let alone what the rules mean) or how power is to be licitly acquired, limited, and used, and when there are ever-increasing attempts to police the usage of ever-shifting words and concepts in everyday language, you're squarely in Jacobin-totalitarian territory, citoyen.

[#FFFFFFPride]

That theory is new to me, any sources I can follow up on to learn more?

[Nige]

'and when there are ever-increasing attempts to police the usage of ever-shifting words and concepts in everyday language, you’re squarely in Jacobin-totalitarian territory, citoyen.'

Like when Republicans pass laws enforcing pronouns, [rohibiting nicknames, policing peoples' appearance and dress, yeah?

[Intelligent Mr Toad]

Trump is more like Prigozhin than like Navalny!

[Michael P]

Joe Biden is just like Stalin and Mao rolled into one!

[Intelligent Mr Toad]

Translation: “I, Michael P, am unhinged”.

(BDS = Biden Derangement Syndrome)

[hobie]

Yet another cultist that confuses the crimes of fraud and theft as merely political shenanigans; the sacking of the Capitol as legitimate political discourse. That people like this hold power or sway is mind-boggling

[Bruce Hayden]

What fraud? Using a valuation different than that utilized by the NY judge, who nonsensically utilized notoriously inaccurate property tax appraisal values?

What theft? Are you talking the personal documents Trump had GSA ship to MAL when he left office? His personal copies of formerly classified documents?

[Burkhard]

"But, I specifically said then, and I continue to believe now, that no former President of the United States should ever be sent to jail " - the US reinventing absolute monarchies, where the leader, elected by God, can literally get away with murder, and law applies only to the subjects.

[Krayt]

Rich and powerful may commit crimes. This is what tyrant kings took advantage of with warrantless investigstions, or general warrants. Like a police officer following a driver around, he knows it won't be too long until some violation.

Do we want opposition launching nigh infinite investigations to get an opponent, with this knowledge almost certainly guaranteed?

I am not defending politicians committing crimes. I have little doubt they all do. Worldwide and throughout history, you go into government to be corrupt. They just have to hide it better here.

But if the crimes are not exposed but for intense investigation of one or the other as a political enemy, well, that violates equality before the law.

Serve a general warrant with arm twisting process crimes on every congressional leader, let's see what happens!

[Krayt]

No, seriously. Let's do that. Equality before the law. Do not let the power hungry pick and choose which of their colleagues to throw under the bus.

[Sarcastr0]

Worldwide and throughout history, you go into government to be corrupt
Still onto this college student-level libertarian foot stamping?

What a weak way to defend Trump: 'everyone does it, evidence or no.'

[Nige]

'I am not defending politicians committing crimes'

You absoutely and unequivocally are.

[Nige]

Well, *one* politician, anyway.

[I woke up when Hillary talked about Reconstruction]

And start at the top... Our politicians obstructing the leades of other countries. as Obama and Biden have done in the greatest manner.
What right did Obama have to go to Britain and lecture and finger-wag the Britons about what he said was in their best interest. He serously pissed the whole population off and what was a close vote went to pulling out of Brexit. Obama caused the very thing he hated. And the British out of disgust with him tipped the other way. Same with Africa. ...Biden was so stupid and lazy that he managed to get masive anti-American protests going by college students in Uganda because he wanted them to accept homosexuality.

Ugandan Students from 13 Universities protest Joe Biden's push for homosexuality
.

[ObviouslyNotSpam]

Of all the reasons people claim to have voted for Brexit, I doubt your fantasy that "Obama made them do it" cracks the top 100.

[Rev. Arthur L. Kirkland]

.

And start at the top… Our politicians obstructing the leades of other countries. as Obama and Biden have done in the greatest manner.

You forgot to include Clinton, Carter, Johnson, Kennedy, Truman, and the three-term Roosevelt.

Why the forgetfulness, clinger? Are you getting too old for this? Or is it just that your bigotry and superstition make you crazy sometimes?

[I woke up when Hillary talked about Reconstruction]

From a previous news report

BREAKING: Ugandan students from at least 13 universities take to the streets, to protest against President Joe Biden in front of their parliament, and sing, “We don’t want your pro-gay money. We want and love our country more than money.”
Under Biden I count 8 African coups so he really doesn't give a sht about rights. All talk,

But senators including committee Chair Ben Cardin (D-Md.) said it was clear that the U.S. government needed a “critical evaluation” of its policies on handling coups.

“I would just argue the fact that we don’t have a consistent response to those who participate in coups has led to the view that you can commit a coup and still remain a relationship with the United States,”

YOU CERTAINLY CAN. Don't enact laws about homosexuality but if you kill women and childrent, that is okay

[Rev. Arthur L. Kirkland]

Unhinged, old-timey superstition-addled gay-bashers are among my favorite culture war casualties . . . and the core target audience of a white, male blog that has welcomed Steven Calabresi into the guild.

[Nige]

I'm not even sure what your point is. It's somehow Biden's fault that these people are raging homophobes?

'Don’t enact laws about homosexuality but if you kill women and childrent, that is okay'

This is amazingly incoherent, but it matches the pro-Netanyahu crowd who sometimes claim Hamas being homophobes makes it okay to kill women and children.

[Rev. Arthur L. Kirkland]

Ugandan homophobes seem little different from America's gay-bashers . . . although the Ugandans seem to be less cagey and disingenuous about it than are the bigots encountered daily at the Volokh Conspiracy.

[#FFFFFFPride]

Calabresi should brush up on Game Theory.

That tells you that the absolute wrong response is to turn the other cheek.

Tit for Tat is the appropriate response.

[ObviouslyNotSpam]

That's very Old Testament of you.

[Krayt]

He is, however, correct.

The optimal solution to stuff like the prisoner's dilemma is "trust but punish". Start out assuming to do the thing that will benefit both, and if one player does the greedy thing, punish.

[Sarcastr0]

The whole fucking point of the prisoner's dilemma is that there is no one optimal strategy; it's where game theory meets psychology.

A blind simulation of an iterated prisoner's dilemma had tit-for-tat come out on top. But those were blind computer algorithms, not real people.

[Sarcastr0]

All the smartest people capitalize Game Theory.

Strong Scott Adams energy here.

[Rev. Arthur L. Kirkland]

You'd think culture war casualties would be less enamored of scorched earth.

But they didn't become movement conservatives and Trump fans with adequate education, sound judgment, strong character, and good conduct.

[Stephen Lathrop]

Criminalizing Politics is a Threat to Democracy

Depends on how the politics are practiced. Criminal politics, such as organizing political and violent means to overthrow an election, must be met with forthrightly political prosecutions. To do otherwise disarms the charges, and requires that the actual crimes be neither named nor accurately described.

To be sure, partisan politics have no place in prosecutions. But, otherwise, zealously political prosecutions in defense of the nation's political institutions, and constitutionally mandated political processes, remain indispensable.

To avoid encouraging in the public the misconceptions which beset Professor Calabresi, it is also necessary from time-to-time for prosecutors themselves to reiterate, publicly and forthrightly, what political criminals should expect. Which is to be confronted by zealous prosecutors guided with an eye to jealously political prosecutions in all cases where indispensable political institutions and practices come under criminal attack.

Attorney General Merrick Garland is long overdue to make such a forthright announcement. If he gets around to it, he would be wise to suggest that nothing constrains the reach of such prosecutions into the highest levels of government, in all 3 branches.

[Frank Drackman]

Parkinsonian Joe should get prison for calling Laken Riley "Lincoln Riley" who last I checked was Head Coach of the USC Trojans.
And best I can interpret from his garbled yelling, was
,“an innocent young woman who was killed by an illegal – that’s right. But how many of thousands of people are being killed by legals?"
Of course Fancy Nancy Pelosis was outraged, not at Laken's Murder, but Sleepy Joe using the term "Ill-legal"

Frank

[Estragon]

2001? Does this guy proofread? I can’t imagine being an incoming 1L and being forced to take conLaw with this person.

Remember kids— if you’re going to be an actual lawyer attention to detail is key.

[Nige]

Why the fuck are people defending Trump on pro-democracy grounds? Or rather, how are they getting away with it without being laughed into obscurity? Trump tried to overturn an election, illegally. He still claims he won. He wanted to invalidate the votes of most of the people in the country, and still thinks that those votes are invalid. He attempted a staggeringly anti-democratic act. If you're investing hopes for democracy in him, you're either an idiot, or anti-democrtic yourself.

[Mr. Bumble]

...and you, as always are full of shit!

[Riva]

What else can they do? Covid is gone so lawfare is all they have. Not like they can campaign on the issues or Biden's record. And once the insurrection nonsense runs its course I fully expect them to go back to the Russia hoax.

[Sarcastr0]

Biden's record is pretty great, though. Our economy is better, Covid is put to bed, NATO is expanding.

You are once again ipse dixiting stuff you want to be true. And you want America to suffer because the wrong part is in charge.

Life in America being worse is a small price to pay for you feeling you're right on the Internet.

[Brett Bellmore]

"Our economy is better, Covid is put to bed, NATO is expanding."

You're just a joke at this point, you know that?

Yeah, if the states trash the economy by literally ordering businesses to shut their doors, the economy recovers when they back off. Whoa, who saw that coming?

Covid put itself to bed, ran its course. To the extent anything medical had anything to do with the pandemic burning out, (Rather than basically everybody having developed immunity due to having gone through it.) it was the vaccine that Trump sheparded past the bureaucracy.

And NATO is expanding because Russia invaded Ukraine. I think I'd rather have a slightly smaller NATO and peace in Ukraine.

[Sarcastr0]

Keep explaining why things are good under Biden but it’s totally not because of Biden who is very bad actually.

And this is not a post Covid boom anymore. You need to work harder! Trump demands more rationalizing!!’

[Absaroka]

You mentioned three things: "Our economy is better, Covid is put to bed, NATO is expanding."

Can you explain what Biden did to improve the economy? What he did to end the pandemic?

For NATO, what's the argument? Finland and Sweden woke up one day and said 'Hey, we like Joe Biden! Let's join NATO!'?

If covid had come on the scene in 2020, would you be blaming Biden for it, or does he just get the credit after it runs its course? Does Biden (and before him Obama!) get the blame for Russia invading Ukraine, or only the credit when that leads to NATO expansion?

Biden, like any president, has done some things right and some things wrong. Praise or blame him for things he has some control over.

Blaming FDR for WWII or crediting Nixon for landing on the moon is just silly.

[Mr. Bumble]

Like I said above; GaslightO is full of shit.

[Sarcastr0]

You showed up here perhaps a bit overly pithy, but a lot more substantive than you are today.

Compare and contrast your empty name-calling with Abrasoka, and consider which kind of commenter you'd rather be.

As it is, you make this blog and yourself worse with how you comment.

[Sarcastr0]

Your standard is hard-and-fact political science direct cause.
I'm picking up on Riva's comment and talking about campaignable issues.

1. The President has little control over the economy, and less over the timeline of a single term. But that does not mean the economy is not an issue on the President's record so far as the American People are concerned.
As the commenters here well know - they blamed Biden for the economy when there was inflation; now they are trying to ignore Biden when the economy is doing gangbusters.

2. NATO expansion well predates Russia invading Ukraine. I worked for the DoD back in 2016; Finland and Sweden's membership did not start under Biden, but it did continue from the Obama Admin. Getting it official required plenty of continued diplomacy and defense logistics that had slowed and were under question under Trump, and restarted under Biden.

3. As can be seen in other countries, Covid could have gone worse, both economically and in terms of the death toll per capita. You can quibble about causality, but it's hard to argue that federal policy had no part to play.

[Nige]

The amazing thing is, covid is still killing more than a thousand people a week in the US and everyone, including Biden and the cdc, is acting as if it's actually gone away. Imagine how much mileage the Republicans could get out of that if only they hadn't fixed on the idea that it was fake and the vaccine was a NWO poison delivery system and lockdowns were never going to end.

[Sarcastr0]

It's become endemic. Like the flu, but 3x more deadly.

So yeah, I'd call it put to bed but certainly not eradicated.

[Nige]

I'd call this a success for Republicans - not only pretending it never really happened, except to some old people, maybe, but that it isn't still happening.

[Don Nico]

" but 3x more deadly. "
That is a lie and would mean a mortality of 0.5%. Where in the world did you get that?
The present variants of omicron have a mortality level equal to of less than H1N1 flu.

[Sarcastr0]

I heard it at work, but a bit of Googling for 'covid versus flue death rate 2024' shows:

https://www.ahcancal.org/News-and-Communications/Blog/Pages/Flu-or-COVID-19---Which-is-Worse.aspx

Key Highlights:
-Seniors who contract COVID-19 are much more likely to experience serious illness, hospitalizations, or death.
-The rates of hospitalizations for individuals over the age of 65 is nearly 10x greater than those with influenza (see figure 1).
-Among individuals over 65 they are 3-4x more likely to die from COVID-19 compared to influenza (see figure 2).

[Absaroka]

"...less than H1N1 flu"

Where does H1N1 set relative to flu in general?

I also had a hard time finding current numbers; if you have a current comparison I'd be grateful for a link.

[Don Nico]

"Covid is put to bed,"
Which had nothing to do to with Mr. Biden or any other bureaucrat around the world.
It was due to natural processes of mutation.

[Sarcastr0]

Look at the comment I was replying to, for once!

It is about politics, not but-for cause.

[Nige]

It was Republicans who went back to Russia, remember?

[Rev. Arthur L. Kirkland]

Nige is full of shit.

You and your fellow Volokh Conspiracy fans are disaffected bigots and obsolete culture war casualties.

Where it the hope for America, Mr. Bumble?

[Nige]

And you hate democracy.

[Alpheus W Drinkwater]

"...I continue to believe now, that no former President of the United States should ever be sent to jail..."

I apologize for being insulting, but no one with a moderate level of intelligence could really believe this as a hard and fast rule. My comment has nothing to do with Donald Trump specifically. NO MATTER WHAT a future President does in office, he or she should never be incarcerated? Really?

[wreckinball]

Immunity is in regards to what he does as part of his presidential duties. He can be impeached for that though.

[Sarcastr0]

Not what the OP says.

[Dr. Ed 2]

For the greater good of the country, no.

We look like a Banana Republic right now...

[NOVA Lawyer]

We look like a (formerly) trendy clothing store?

You MAGA types are really bad at capitalization and grammar generally. Is it because red states tend to have abysmal education systems or because MAGA types tend to be less educated, generally? Will the mystery ever be solved?

(If we look like a banana republic, it's because a former president came into office claiming the election was rigged and literally promising to lock up his opponent. Then that same guy claimed the next election, which he lost, was stolen and proceeded to spread lies as well as participate in or encourage a number of illegal schemes (fake electors, J6, etc.) in an effort to remain president. I agree all of that is banana republic type stuff. But we are not a banana republic because, so far, democracy is holding and he is being held accountable.)

[wreckinball]

There's only one side. Everything is not both sides. The Biden administration is prosecuting their political opponents.

One side.

[Sarcastr0]

Thank goodness you're here to explain the nonpartisan, Pro-Trump facts to all of us.

[wreckinball]

Yea, you're pretty far out over your skies on this thread.

[Sarcastr0]

You are hardly a nonpartisan so stop playing dress up.

[wreckinball]

You have to be a complete nut-job if you think the recent lawfare antics against Trump are legit.

[MoreCurious]

Get back to us after you’ve read the indictments. If you still think the charges against him are illegitimate, I hear he's frantically looking for more lawyers to represent him in his upcoming trials. You can add your name to the list of lawyers who will make fools of themselves trying to defend him.

[CJColucci]

What does Calabresi want and from whom does he think he is going to get it for this sort of thing?

[Sarcastr0]

He's persona non grata at the Federalist Society, no longer allowed to say he's a founder or member of the board, even though he's both.
https://abovethelaw.com/2022/11/federalist-society-tells-founder-he-cant-call-himself-founder-in-purity-purge/

Speculation abounds about why this is the case - Calabresi apparently told Yale he supports affirmative action, critical race theory in law school, and reparations for slavery and segregation. And he doesn't think Trump is Presidential timber.

It could be this broke him in some emotional way; it could be he thinks this performative abject sacrifice of his reputation will take them back, or it could be something else.

It's the best theory I've got though.

[gormadoc]

The French Empire under Napoleon wasn’t inevitable. If they hadn’t made spreading the revolution their foreign policy and invaded their neighbors and North Africa, they wouldn’t have had gone through the military and political crises that brought down the Directory.

[David Welker]

Calabresi write:

While many of these complaints have some merit, and while I believe Hunter Biden has committed crimes, I think he should be heavily fined and not jailed because of the norm of not criminalizing political disagreements.

This isn’t good reasoning for how to punish someone associated with a political figure. Hunter Biden should be treated like anyone else; if someone else would face jail time for the same actions, so should Hunter Biden. If someone else would not face jail time, neither should Hunter Biden.

It sounds like Calabresi would tip the scale in favor of non-prosecution. But this is problematic from a rule of law perspective. As Senator, Joe Biden has had an influence on the criminal legal consequences that others in society must endure. It is necessary that he and his family are treated equally with respect to these laws. Neither more nor less favorably.

[Sam Bankman-Fried]

Comey was appointed by Obama as an olive branch to McConnell AND as CYA in case of a terrorist attack which the Bush Republican Comey would get partial blame. Pretty much all of the FBI brass involved in Crossfire Hurricane were pretty obviously movement conservatives like Calabresi. The reality is Trump’s original sin was not holding up the appointments of Republican judicial appointees because that is most important to GOPe and least important to Trump’s initial base. Trump had all of the leverage in the world over McConnell and he relinquished it on day 1.

[you_are_fucking_nazi_idiots]

A good way to avoid this political prosecution would have been to not commit 91 felonies including insurrection. You fucking idiot.

[ppnl]

Every time I look at the comments on this blog I get depressed. All I see is the wasteland of tribalism that America has become. The internet has infected reality with crazy and stupid.

[Sarcastr0]

@OrinKerr
Reply to: @jadler1969

I responded to Steve last time. JHA, you want to take this one?

[iowantwo]

Former President Barack Obama started this recent descent into the criminalizing of politics when his Justice Department, on totally spurious grounds, began a secret criminal investigation of Trump's 2016 presidential campaign when he was still just a candidate for office.

Very sloppy on the facts.
The Russia hoax was always a Counter Intel operation. NEVER a criminal investigation. Hillary Clinton was given an intel breifing, Trump was spied on. Led be Brenen enlisting our allies 5 eyes agencies to 'keep and eye on' the Trump campaign. Including those agencies using their paid informants to "bump" the subjects. Initiate contact by a foriegn person. Thus Muddying up the Trump people by having suspicious contact with foreigners. Something the CIA could leak to the media.

[Chip Watkins]

Wjat principle determines when a poliical officeholder or a former officeholder should be prosecuted (or not) or pardoned?