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Notes -
Trump Indicted: https://www.cnbc.com/2023/03/30/donald-trump-indicted-in-hush-money-payment-case.html
This is a major enough story that I think it goes beyond needing more than just a link.
Partial Mod-Hat: If I had seen this first it would have been at least a one day ban. Intentionally violating a rule and not being punished for it makes the rule meaningless. I would have preferred to make an example of a post like this, rather than just allowing it with a light warning. For anyone thinking of pulling this in the future, please take note that OP's lack of a ban is from Luck rather than official policy. End of partial mod-hat
Thoughts on some things:
The Crime of living under an Administrative State
The underlying "crime" seems dumb. It is a result of an overactive administrative state. Its exactly the type of reason why overactive administrative states are evil. There are hundreds of thousands of rules, and a single mistake is enough justification to wage a legal war. Two mistakes in close enough proximity can get mashed together to more than double the consequences. The question we should ask is, can someone pay off their mistress to keep quiet? If yes, end of story. If no, then Hollywood watch out. All the complaints about how the money might have been mislabeled are administrative state bullshit. Why should I need to label how my money (or my businesses' money) is spent for the administrative state? If Trump had labelled the expense "payoff to stormy Daniels" do we have any expectation that the administrative state would be happy, and wouldn't do something like conveniently "leaking" that detail to the press?
John Edwards, Campaign Finance
One of the "rebuttals" to this administrative state unfairness, is that the unfairness was pointed the other direction a decade ago. John Edwards got in trouble for using donations to cover up an affair. Here is the problem, Campaign Finance laws are blatantly unconstitutional. They clearly violate the First Amendment. Campaign finance survives the court system because judges are smart enough to realize that those laws are in place to give legitimacy to the US government. And the actual job of every judge is to hold up the legitimacy of the government, ruling on court cases is merely their means of accomplishing that goal. Campaign finance laws are also always doomed to failure. You can't take money out of politics when politics is so wrapped up in the economy. Anyways, a decade ago when the Obama administration was still getting its legs under itself, parts of the administrative state were still controlled by Neo-Con types. Its not a surprise they used some lawfare to go after a Democratic politician. People here either seem to have short memories, or they've lived shorter lives than me. The post-9/11 period of government, up until about 2010 was absolutely filled with shady things being done by the government that seemed to benefit the Neo-Con agenda. In the exact same way that the opposite is happening today.
State vs State Lawfare
The DeSantis refusal to assist in arrest is interesting. It speaks to a coming problem facing the American legal system. If it hasn't happened already, it soon will happen that there things that are crimes in one state, and in other states NOT doing that thing will be a crime. Trans issues for kids are already splitting that way. The NY attorney is currently going after Trump. Meanwhile Missouri and some other states are going after Fauci. I happen to hate Fauci, and I'm cheering on Missouri, but I'm part of the 'problem' of expanding lawfare. States with entrenched political interests can afford to wage lawfare on the national stage against their political opponents. No one else really has the resources to wage lawfare on the national stage, which Elites probably saw as a feature rather than a bug.
There are also cases of states weaponizing the constitution against the federal government. It might have been Missouri as well, but they passed a law a while back saying that it was Illegal for any state law enforcement agents to enforce unconstitutional federal gun bans. There were a lot of details to the law that made it look like it was basically a setup for a perfect legal challenge against a federal gun law. Coincidentally gun laws have not been getting passed as often lately, so I guess this law hasn't been tripped up yet.
There are "sanctuary" cities. Of various types of sanctuary. Initially for immigration. Now other things that cities don't want to enforce just aren't enforced.
The next Civil (court) War
It is worth thinking about what the end state of all this lawfare will look like. I don't think it actually leads to a hot war with bullets flying. Most of the court cases and topics end up being so dumb and boring that people can barely grab onto what is happening. Instead I think it ends in gridlock. Federal and State courts clogged with cases of lawfare that drag on for many many years. The Supreme Court unable to break the gridlock, because they are a part of the lawfare as well, and their reputation as non-partisan has been damaged too badly. Bureaucratic agencies unable to enforce any of their edicts on suddenly unwilling and uncooperative states. A president would have to call in the troops to start enforcing federal bureaucratic mandates, otherwise state LE just plays a game of arrest and release of any bureaucrats that step on their territory. But even the troops aren't too effective ... after all the issue is going to go to a local court with a local judge presiding, and a favorable local jury of peers.
The way out
Courts have a letter of the law vs spirit of the law problem. We have tried a system of enforcing the letter of the law for the past century. I think it ends in the gridlock scenario outlined above. Laws aren't mathematical enough to all coexist nice and peacefully with one another. There are conflicts, discrepancies, and gaping holes all over. The court system has been papering over those problems for as long as they can. But everyone is starting to see the problems. Trump, as always, is just a catalyst. No one has even bothered asking what spirit of the law Trump has broken. They went straight to finding the tiny letters that he might have broken.
I think the way out will require a great reset of court systems. Possibly with everyone getting their own AI lawyers. Or possibly a system that doesn't require any lawyers. Courts will need to re-establish themselves as bastions of fairness and justice. Rather than just as battlefield locations for lawfare. The longer the period of gridlock or legal failure, the more likely it will be that "Courts" come out looking/feeling/being named something completely different. Courts will have to focus on spirit of the law. Where people that don't violate a single law might still get prosecuted, because they so obviously violated the spirit. Or where people that broke a million tiny elements of the law get off completely free, because they weren't doing anything that actually violated the purpose of the laws.
Because you want the tax benefits that flow from labeling it a certain way?
Like, if you want to pay taxes on all the revenue your company earns or all your personal income or whatever then you don't have to care about how your money is labelled. But the reason people label things as business expenses is because the government gives certain kinds of tax advantage for those expenditures. The government is, I think understandably, upset when people lie to them and claim expenditures were for things that give tax benefits when they actually were not.
I don't understand how you can possibly think a legal system that operated this way would be perceived as more just than the current system. "We're going to throw you in jail, not because you broke any law but because fuck you." "Yea, you broke a bunch of laws other people are in jail for, but we aren't gonna punish you because we like you." Very just!
This one is real. Selective prosecution is just a thing.
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Are there not countries around the world that work somewhat like this, where the de facto law is much more informal than it would seem? I think there's some value in having a "Rule Zero"/"Because I Said So" clause in law, where a situation is sufficiently outside a system's reference class and it also demands swift and decisive action.
I am not sure there is any entity I (or people more generally) would (or ought) trust with that power, for what I think are pretty good reasons.
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Administrative state crap. I'd prefer it if they stop creating thousands of different laws that reward different micro categories of spending with tiny tax incentives. I don't doubt that whatever silly rule is violated has some reason for existing within the bureaucracy. I just don't care about the system in general. Burn it all down I say.
Because a sufficiently complex set of rules just eventually wraps back around to that outcome anyways. When everyone is violating the rules and the only thing that saves them is prosecutor discretion, then it's just some prosecutor deciding who they want to make guilty and innocent. Why not skip the step of having a super complex legal system that wastes a bunch of resources? And why not select the judges and prosecutors based entirely on their wisdom to make good judgements, rather than their ability to manipulate a stupidly complex legal system?
How do you determine "wisdom to make good judgements" in advance? What if people disagree about what good judgements are?
That's why they are elected positions.
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I could definitely envision a future where the courts are so unwieldy that private courts, i.e., arbitration, becomes the de facto court system, with the government courts being the courts of last resort. You could even have local governments or states that would elect to reciprocally bind themselves to a qualified arbitrator for each citizen that chose to do so, e.g. I could choose from a list of arbitration firms approved by the state and agree to be bound by their judgements, and in return the state agrees to only bring cases against me through that firm. The state courts then would be only for people who chose not to select some other alternative.
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The president ordering in the National Guard is increasingly looking like it'd just devolve into its own lawfare.
Individual states are getting really close to passing "Defend the Guard" laws which would stop state national guards from being used without a governors approval or declaration of war by congress. This is a huge movement amongst the 10th amendment center and Mises Caucus of the libertarian party, allegedly individual state senators in out of the way states will get 1000s of calls to their office from local libertarian activists on the days leading up til votes... and its getting really close to the first state tipping over and passing the bill.
America will probably go down the path of the Holy Roman Empire, where the legal complexity and rivalled centers of power create defacto independent polities and overlapping unnavigable sovereignty
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You're not wrong.
But just uttering the term "Trump Indicted" with a reliable source to back it up kinda brings in all the necessary context for discussion on it's own.
Doubtful anyone here needs the background story.
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I have to say I think this is a really good post. Could work as a public intellectuals substack writing on the issue.
I’ve often thought someone should create a sub stack and just repost Motte comments, but not sure how that would fly. I’d want to credit people but it’s tough with the way things are set up.
There is The Vault.
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