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Josh Blackman reminds us to look "long" backwards when we're taking "The Long View"
Here, looking "long" is still less than a decade. I've been thinking/saying a lot about the legal response to Trump and how many attempts would eventually come back once people take the long view and get past a specific attempt to 'get Trump'. For example, I continue to believe that Trump has a First Amendment defense to the claimed FECA violation that allowed NY prosecutors to bootstrap a misdemeanor charge into a felony, if only the defense is allowed to be vigorously pursued in the courts of appeals and if those courts take the long view of why we have the boundaries in law that we have. Josh Blackman points out how SCOTUS has already, tangentially, repudiated a prior attempt to 'get Trump' by taking the long view and looking at the issues from a high level in a case that still directly involves Trump, but where the connection doesn't immediately jump out and hit you in the face until you see it. But once you see it, you can't unsee it. It's the rare example of one small, discrete observation unmistakably changing the frame of issues past, and it's one that I think will ultimately be part of the history books for how we look back on the events that transpired.
The case is the very recent Trump v. United States, which was much commented on for its judgments on presidential immunity as relates to separation of powers and Scalia's The Executive Power (I can't find a way to directly link to the dissent). Many aspects of the case have been dissected, mostly with forward-looking analysis of what a President may do in the future, but this little nugget reminds us to look back to the beginning of the Trump Presidency and the Mueller Report. Remember that? It was viewed as a huge disappointment, with part one of the two-part volume pursuing any Trump-Russia 'collusion' mostly being seen as coming up empty. But even then, many folks tried to rally around part two, which focused on whether Trump obstructed justice by threatening to fire Acting AG Rod Rosenstein or by actually firing FBI Director Jim Comey.
Blackman points out that in light of Trump v. United States, the entire premise of this part two, all of the investigative work that went into it, all of the hoopla around whether it was enough to take down Trump, all of the effort to put forth a plausible case was all completely wasted and would have been nipped in the bud in hindsight had we had the appropriate long view. Directing subordinate Executive branch officials, firing them if desired, and wielding absolute prosecutorial discretion is a 'core' part of The Executive Power, and the President has unrestricted power and absolute immunity in such actions. "If Chief Justice Roberts is correct, Mueller should have never been appointed in the first instance," Blackman says.
I'm sort of kicking myself for not noticing on my own. Blackman views it as a microcosm of the "lawfare" that has been waged against Trump, serious legal challenges, taken seriously by essentially everyone, perhaps even remarkably close to actually taking him down from the Presidency, yet upon further reflection leaves one thinking the whole matter is actually a relatively trivial case of, "What were we even thinking?! What in the world were we doing?!" I tend to agree. I've definitely gotten caught up from time to time in the minutia of one of the cases, what the probabilities are of different outcomes, how subtle changes of analysis could affect the result, and when/if courts might look back and repudiate what may ultimately even be a successful attempt to 'get Trump' with legal cases. It never feels good to think, "They might actually win the battle, but ten years from now, when it doesn't matter anymore, courts will probably vindicate what was right all along." So, I'm going to try to enjoy the pleasant surprise that only seven years later, before Trump has actually 'got got' by one of these shaky things, the highest court in the land has actually taken the long view and essentially said that at least one of these attempts, perhaps one of the most serious of them, was fundamentally misguided and should have been entirely cast aside before any effort went into the details and minutia of the case.
I think many people during the time of Mueller's investigation were sounding these alarm bells about the ridiculous and novel obstruction of justice theory cooked up by Weissman.
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