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naraburns  nihil supernum  1yr ago (text post)   15603 thread views

Culture War Roundup for the week of December 19, 2022

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This dropped a few hours ago:

Jan. 6 Committee Refers Former President Trump for Criminal Prosecution https://archive.vn/TDlGb#selection-289.14-297.189

The committee accused the former president of inciting insurrection and other federal crimes as it referred him to the Justice Department, which does not have to act on its recommendations.

Jan 6 committee refers Donald Trump for criminal prosecution on four counts – as it happened

The four counts of the Trump referrals are for “influencing or impeding an official proceeding of the US government”, “conspiring to defraud the US”, “unlawfully, knowingly or willingly making false statements to the federal government”, and “assisting or engaging in insurrection against the United States”.

So, suppose the Biden Justice Department prosecutes. And the case is tried in DC, where the chances of getting a jury of 12 Democratic partisans is "better than average". And so they convict him on all counts. I'd say chances of a real insurrection before 2024 rise to over 10% in that case, and prospect of convincing any Trump supporter that the government (present or future) is legitimate drops to very close to zero. I don't think the republic can survive it without violence, whether immediate or in a somewhat longer term. Even a 2024 Desantis win wouldn't calm things down, unless Desantis took clear retribution (and then you have to worry about the OTHER half of the country).

Criminal prosecution of Trump on obviously political charges is entirely insane.

So, suppose the Biden Justice Department prosecutes. And the case is tried in DC, where the chances of getting a jury of 12 Democratic partisans is "better than average". And so they convict him on all counts.

I've long thought that this sort of action would see state-level retributive lawfare from right-leaning partisans. Could Arizona bring state murder (or conspiracy) charges against Holder and/or Obama for their actions to supply firearms (and later, conspiracy after the fact to cover it up) in the murder of Brian Terry? Or the drone strikes on US citizens Anwar al-Awlaki and his underage children (assuming their last domestic state of residence have sufficient jurisdiction)?

I'm not a lawyer, but I'm not aware of any requirement that state courts observe a federal notion of executive privilege. The optics of removing the case to federal court to close it would also be pretty unsightly: arguing that the President can effectively engage in murder regardless of state laws sounds unpopular on the left, and indirectly hearkens back to the Trump claim that he could "shoot somebody and wouldn't lose voters."

On the other hand, maybe I overestimate the concern of the median voter for esoteric legal shenanigans. Also, the right is fairly divided on the idea of Trump at the moment and might well be willing to throw him under the bus rather than seek retribution.

The principle you want is not executive privilege but rather Sovereign Immunity. The Supreme Court answered this question all the way back in 1890, ruling that federal officers are immune from prosecution by state authorities when acting within the scope of their federal duties (as I think would be the case for all your examples here).

That sounds right, but I think there is some room for debate (in particular, in the court of public opinion) about whether "within the scope of their federal duties" includes targeted assassinations and literal (and incompetent) firearms trafficking. I think both sides would probably be wary of allowing such an explicit precedent, but quietly closing the case does seem a likely outcome.

Nobody is thinking about precedent right now. The J6 committee dog-and-pony show teaches us this almost exactly; it’s all temporary battle-winning for one side.

It's about permanent war-winning. You don't have to worry about "precedent" if your side remains in control.

Prosecuting Trump doesn’t actually do that, all it does is piss off the red tribe.

Making it clear that even if you win an election you're just going to end up in jail does a good job of deterring the other party. Same as disbarring Giuliani for having the temerity to challenge the (rather irregular) Pennsylvania election. Yes, this pisses people off, but the idea is to let them know they have no options besides submission and (futile) violence.

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That's what worries me, the beltway/journo-list crowd seem to have genuinely bought into their own hype.

Interestingly Ex parte Young points a little in this direction. Ex parte Young held that when state officials act contrary to the federal constitution they cannot be acting in the scope of their official duties (since their official duties cannot entail unconstitutional acts) and so they cannot avail themselves of the protections of sovereign immunity.

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