COVID-19 and January 6 in the Rear-View Mirror

There are certain geopolitical events that are generation-defining. In my lifetime, I think they would be the fall of the Soviet Union, 9/11, the election of President Obama, the election of President Trump, the COVID-19 pandemic, and January 6. For earlier generations, they would have been Watergate, the moon landing, the Kennedy assassination, Pearl Harbor, and so on. These are moments in time that everyone remembers where they were when they happened, and after they occur, people say things will always be different. 

The Supreme Court, as a continuous institution, invariably had to discuss these epochal events in one form or another. Two cases decided this term provide a glimpse at how the Court, and indeed how history, will view the COVID-19 pandemic and January 6. In both Murthy v. Missouri and Fischer v. United States, the Court nonchalantly refers to each incident. 

During the height of the pandemic, Justice Breyer would trot out statistics about how many people might die without various safety protocols. But in Murthy, Justice Barrett's majority opinion barely mentions why the Biden Administration was leaning on social media companies to suppress certain messages. Even though Justice Barrett was not particularly sympathetic to the First Amendment claim, I get the distinct sense that she thought the government's actions were imprudent--especially with the benefit of hindsight. (We all remember how many people were wearing masks during her Rose Garden ceremony.)

And in Fischer, Chief Justice Roberts refers to those who breached the Capitol as a "crowd of supporters of then-President Donald Trump." Just a "crowd." Not a horde of insurrectionists. Justice Jackson uses slightly-more charged language--an "angry mob." Justice Barrett only calls them a "mob of rioters." Nothing even remotely close to the language of insurrection. (Sorry Will and Mike.)

If you had told me on January 7, 2021 that the Court would refer to the pandemic and the election certification with such bland language, I would have been skeptical. But here we are. Calamities grow calmer as they fade in the rear-view mirrors. And despite everything that has happened the last 3+ years, there is a very good chance that Donald Trump is re-elected. Does anyone even remember the rushed impeachment trial that occurred after he left office? Does anyone even care about Section 3 anymore? (Sorry Will and Mike.)

So maybe I was wrong. Perhaps the pandemic and January 6 were not generation-defining moments. These events were not the culmination of deeply-rooted and longstanding societal movements. Rather, they were blips that came out of nowhere, and which faded once they were over. People seemed to have moved on from them.

I realize this is an apostasy in law professor circles, but if Trump prevails in the election, President Biden (or whoever is in office at the time by virtue of the Presidential Success Act or the 25th Amendment) should issue a complete pardon. As a practical matter, it will not matter if the President issues such a pardon. On January 20, 2025, Trump would certainly fire the special counsel, direct the Attorney General to dismiss the prosecution, and maybe even pardon himself. A pardon from Biden, at least, would require Trump to accept it--and perhaps people can see that acceptance as some act of contrition. This was how Gerry Ford viewed his pardon of Nixon. Trump, however, may not reject the pardon, which would be a symbolic act unto itself. If Biden loses, his political career is over one way or the another, and he could shoulder the political burden.

The harder burden is whether the Governor of New York would issue a pardon. I am doubtful, but I think that sentence would have no bearing until Trump completes his second term.

Comments

[Stephen Lathrop]

While Blackman tries to figure out ways to memory-hole a coup attempt, pause to reflect on the corrupt partisan judicial practices already in use. Fact is, everyone—from the political right to the political left, and most acutely right-wing partisans among the judiciary—know why those trial delays are happening. Everyone understands the critical importance right wingers assign to keeping the facts supporting the indictments from oath-sworn public exposure and evaluation in open courts. History is not going to forget the corrupt cynicism of these delays. They will stand forever as blinking neon signs attracting scholarly attention to whatever facts escape proper court review.

[John Rohan]

People who throw coups use guns, not flagpoles and bear spray.

And Blackman says Jan 6 was a "generation-defining moment", that's pretty much the opposite of memoryholing it.

[Kazinski]

Maybe they shouldn't have waited 2 1/2 years for the indictments on the Jan 6th case, and it would have been easier to have a trial before the election.

I appreciate your honesty Lathrop, you've always been clear that you see a primary purpose of the court cases as derailing a Trump '24 campaign.

I wish everyone was as forthright as you are.

[Stephen Lathrop]

Kazinski — I wish you were as forthright as I try to be. I have attempted to be clear that my primary concern has always been to defuse a potentially existential constitutional crisis by exposing to the most comprehensive public scrutiny possible the facts alleged both against Trump, and in his defense.

Of course I do not hide my own antipathy for Trump. I have accused him of treason, and meant it literally. But I genuinely believe that even proving that accusation is less important for the continuation of American constitutionalism than getting the facts before the public prior to the election. What Trump may do frightens me less than what both his supporters and his detractors might do if they remain incompletely informed about what has happened.

When I use the term, "existential crisis," I mean it literally. I hate the prospect of being forced into avoidable bets for outlandishly high stakes, even in instances where I think good luck is more likely to prevail than otherwise.

[Mr. Bumble]

You can't handle the truth or you would be just or more concerned about getting the "facts" out there about the current president.
If he was your father would you take away his car keys?

[Armchair]

" I have attempted to be clear that my primary concern has always been to defuse a potentially existential constitutional crisis by exposing to the most comprehensive public scrutiny possible the facts alleged both against Trump, and in his defense"

Are you saying that hasn't been done? I seem to remember an entire congressional commission on it.

[JesusHadBlondeHairBlueEyes]

A now officially illegitimate one.

[Stephen Lathrop]

Yes, I am saying that the congressional commission fell far short of what is needed, both in terms of delivering comprehensive information, and in terms of garnering sufficient attention. Key witnesses who would all but certainly be compelled to testify fully in a criminal trial succeeded in escaping testimony before the commission, which lacked a subpoena power as imposing as that of the criminal justice system.

A vast audience share chose not to tune in to congressional broadcasts, or relied only on the highly edited presentations of various media. The veracity of the congressional commission's presentations was open to challenge in a way that a criminal trial's results would not be. During a criminal trial the testimony would be delivered to the public unedited.

[Kazinski]

Ill say the Congressional Commission fell short of what was needed. It was a show trial to present a narrative concocted behind closed doors. For instance they had no real interest in finding out why there were not troops already at.the Capitol, and why it took so long to get the troops there when it was clear they were needed.

But because they made no effort to actually be even handed and find the real answers.their report convinced nobody. They discredited their own report. It was intended to be a partisan hatchet job and that's how it was accepted.

[Social Justice is neither]

Well, no. The J6 commission evidence was all removed or destroyed to prevent exonerating evidence from getting out of that show trial and he was perfectly fine with that or at least saw nothing of note.

[Don Nico]

SL,
You did not answer Kaz's objection. Waiting so long to indict Trump made the delay tactic possible.

[Michael Ejercito]

On three separate occasions, roiters attacked each of the three branches of the federal government.

They are all equally bad.

They should all be equally.punished.

[AtR]

I don't want an impassioned and bombastic judiciary ... we have politicians for that.

[Frank Drackman]

November 30, 2013. Any SEC Fan knows what I'm talkin' bout.

Frank

[JesusHadBlondeHairBlueEyes]

Without a doubt, the greatest play in football history. And football future.

[zvwmzvwmzvwm]

You need a vacay, Josh

[John F. Carr]

Blackman's generation-defining moments come every six years on average.

[jimc5499]

"Perhaps the pandemic and January 6 were not generation-defining moments."
They were "generation-defining moments".

They showed the American people how far that the Liberal Socialists who co-opted the Democrat Party will go to obtain power. They also show the number of people who will deny reality to go along with them.

[JesusHadBlondeHairBlueEyes]

And how corrupt and irredeemable many of our institutions are.

[RAM]

Quote: "Does anyone even care about Section 3 anymore?" Sure we do once it is proven beyond a reasonable doubt in a court of law. That just might be a little difficult to do since the FBI put out a statement saying that it was not an insurrection. Plus the so-called Commander-in-Chief has proclaimed on several occasions that "to take on the government you need tanks, F35s, and nukes." I believe from media reports that the only "weapons" the mostly peaceful rioters had were poles - no automatic weapons of war, no tanks, no F35s and no nukes. This probably accounts for the only deaths from the incident being protestors.

[David Nieporent]

the FBI put out a statement saying that it was not an insurrection.

Where do you people get this made up shit from?

[John Rohan]

They Floyd riots were also a generation-defining moment, although the left now wants to pretend they didn't exist.