PrawfsBlawg

Why Ever Bother Calling a Trump Regime Press Office?

It's been a remarkable week for the press. In a week in which the president's corruption* and authoritarianism were displayed, inter alia, in a letter from his personal lawyer threatening to sue CNN and the New York Times for defamation for accurate reporting on intelligence reports concerning the United States airstrike on Iran--a letter that was rightly met with the response, "No retraction is needed. No apology is forthcoming."--here's another item in the annals of Trump regime contempt for both transparency and the role of the press in investigating and reporting on government. Granted, it involves an insane person, but insanity is no disqualification for high office in this regime. 

The lunatic in question this time is Director of National Intelligence Tulsi Gabbard, who wrote on the regime's de-facto official channel to complain that a Washington Post reporter had engaged in what she called "harassment" of ODNI staff. Gabbard said: "Instead of reaching out to my press office, she is calling high level Intelligence Officers from a burner phone, refusing to identify herself, lying about the fact that she works for the Washington Post, and then demanding they share sensitive information." I assume Gabbard is lying or engaging in subterfuge about the last three items on her bill of particulars and did not conceal her identity from the individuals she spoke to. And I'm not sure what relevance the use of a burner phone has, except that acting under the assumption that your government wants to investigate or persecute you is good journalistic practice under this regime (and has been a good idea under other administrations too, at least in the national security area).

But I'm struck by that phrase, "Instead of reaching out to my press office." Press or communications offices can be a good thing and good press people can be useful, honest brokers. Frequently, they are also experienced and expert about the subject matter of the agency or company whose media relations they handle. But of course they are there for efficiency and transparency, not because there is some kind of rule or expectation that you should always turn to them first. If your question is for the Department of Homeland Security's Director for Crisis and Weather Management, and you have that person's phone or office number, that's who you call or visit. Whether that person wants to tell you to talk to go to the press office instead is their business, not yours. And if you're not sure who to call, or are doing a more comprehensive piece, and you have a list of 200 employees, you call all 200 people on that list. This is called reporting, not harassment. As the Post's executive editor said today: "Reaching out to potential sources rather than relying solely on official government press statements regarding matters of public interest is neither nefarious nor is it harassment. It is basic journalism." Indeed, it's the kind of journalism we always need more of, and precisely why Substack pages or skimming through Twitter feeds are no substitute for heavily staffed pressrooms.

It is not administration-specific that good reporting requires more than simply going to the press office with one's hand out. But it's especially true given the staffing of this regime. In any administration, the good practice would be to make the best possible use of the press office and also try to find and communicate directly with sources. But the question one must ask about this regime is: Why would one bother to talk to a Trump regime press office at all? Its press practices, and the staffing of its press offices, have been remarkably consistent across agencies. It is a customary joke or assumption that all press people lie. But lying is quite literally not incidental to but the primary job of press offices under Trump v. 2, and they undertake it with both energy and determination.

Beyond this, the press people in the current regime are unreliable not only because of a constitutional propensity to lie, but because they simply lack the expertise and experience that actually makes someone in a press office at a specialized agency valuable. ODNI is a good example. During the Obama administration, the spokesperson for the office had previously spent two decades in the Marine Corps and did media relations there and elsewhere before taking the job. The DNI press person during most of the first Trump administration spent ten years working in that office before taking on the communications director role. The person in that role during the Biden administration served in the Navy, then as a civilian in the National Counterterrorism Center, ODNI, and the CIA before coming back to the communications role at ODNI. The person Gabbard thinks reporters should go to, first and probably last, for information about complex matters of national security graduated from college in 2020, has been flacking on the Hill ever since, and has no background in intelligence or national security.

This is not a personal insult; I don't have that background either. But clearly she is not qualified to do the job, if that job involves something other than bullshitting. This is entirely characteristic of virtually all of the regime's press hires. Of course, more generally it's characteristic of the regime's appointments altogether. From the man in the Oval Office all the way down, the staffing of the regime looks as though, some 40 years ago, Donald Trump ran across the phrase "Peter Principle" in a copy of Forbes and assumed the article was recommending it as good management practice. In short, not only is there no good reason to go to the ODNI press office first, but there is little reason for a reporter who knows much more about the subject than the agency's spokesperson does to go there at all. And the same is true across the whole branch.  

*Why corruption, in this context? Because it's not some claim that the journalists violated national security law, but a personal lawsuit brought by Trump's private lawyer. (How, exactly, that lawyer has the information or security clearance necessary to make some of the claims he makes in the letter, except as mere flourishes, is beyond me. But this is not a regime that takes management of confidential information especially seriously.) And that lawsuit can be yet another ring on the cash register, especially with respect to a company like CNN, if you have someone around who is servile and/or unscrupulous enough to use his office as leverage.  

Dear Leader: Yes, I Totally Support Everything You Do, and Ed Martin is a Fine Man

I wanted to lay down a marker, just in case, so please take the headline as an accurate summation of my views. For the record.

The reason for the desire to clarify my natural admiration is this memo from AAG Brett Shumate to the DOJ's Civil Division, stating the policy priorities to be pursued by the division. One of the five items on the list: "Prioritizing Denaturalization." It leads with examples of attractive cases: "The benefits of civil denaturalization include the government’s ability to revoke the citizenship of individuals who engaged in the commission of war crimes,..." But keep that word "include" in mind. Its categories of "priorities for denaturalization cases" likewise leads with the big guns. But it also includes, inter alia, "individuals who engaged in fraud against private individuals, funds, or corporations." Now, I don't think I've done so or been accused of doing so, let alone found liable. But would this not include, at the division's discretion, say, plain-vanilla civil suits for fraud? And does it actually require a negative verdict? Or even a lawsuit? Do I need to go back over the history of my Columbia Record Club membership just to be safe? And it contains two further high-priority categories, both of which are we'll-think-of-something catchalls: "Cases referred by a United States Attorney’s Office or [not "and"] in connection with pending criminal charges, if those charges do not fit within one of the other priorities," and "Any other cases referred to the Civil Division that the Division determines to be sufficiently important to pursue." That is placing an awful lot of faith in the care, integrity, and goodwill of an awful lot of people. 

Of course the focus here is on people like Mamdani or Musk. Undermining the standard argumentative disclaimer that the rantings of individual morons should not be used to tar a whole party, it would appear that Trump actually paid some attention to the urgings of congressman and remarkably frequent liar Andy Ogles about Mamdani, for instance. (See index for multiple references to "Saying, a lot of people are.") But these are prominent individuals. And denaturalization is still tied to the statutory foundation of illegally procuring naturalization or concealment of a material fact or willful misrepresentation. I certainly answered questions honestly on my citizenship application form!

On the other hand, such a wide sweep of discretion, connected to triggers like being referred to the division by no one in particular, might make one go back and look extra carefully at those forms. And the form contains a fair number of catchalls, spread over multiple iterations of the application form whose language has waxed and waned. Are you, like me, a former Canadian? If the president ever decides to push more vigorously on the notion that the United States should use economic force--at least, limiting it to economic force is his current position--to absorb Canada as a single state, something that could happen at 2 a.m. on any given morning on Truth Social, will you be at all inclined to question his judgment? Proceed with caution. Are you a reasonably prominent former Canadian who, say, has been a vigorous proponent of the stripping of nonimmigrant visas, but is still willing to rashly criticize the regime for "blunderbuss tactics" in related areas, or to question the merits or coherence of Trump's tariffs approach? Did you support regime change in Iraq or Afghanistan back in the day? Did it not occur to you to check "yes" to the question, on older forms, "Have you EVER advocated (either directly or indirectly) the overthrow of any government by force or violence?" I would personally consider such an oversight utterly innocent. Still: Double-check your form. Or just make sure not to say anything too critical of any errors or excesses--incidental, I'm sure!--by the Justice Department, the President, the regime, or, I guess, just about any of the wrong people.

Or just hope for the best. After all, there are only some 25 million naturalized American citizens. They can't all say the wrong thing, right? And even if they do, surely their naturalization won't be wielded against them for purely political reasons. Nevertheless, I want to make one thing utterly clear: I think we're in good hands. And the White House renovations have been fabulous. 

The Buck Stops Somewhere Over There, I Guess

Judicial nominations are one area in which it doesn't much matter whether one holds a unitary executive theory of the presidency or not. In other cases, it does. For example, if an FCC chairman were to grossly abuse his office, raising or dropping investigations selectively for partisan purposes, or leaning on a media company that is in the middle of merger negotiations to encourage it to settle a lawsuit brought by a patron of that chairman, the president would obviously want to fire him; who could have confidence in such a person? The president's inability to do so would be a point in favor of the unitary executive theory, which emphasizes that, as the saying goes, the buck stops here. When it comes to judicial nominations, things are simpler. The president alone makes the nomination. He can be a lawyer or a felonious reality TV star, a genius or a semi-literate dope, but his nominations are his call.

So it seems odd to read Josh Blackman saying, in this of all areas, that if Donald Trump made bad choices of judges in his first administration--he did, although, rather conspicuously, not in the case of the one judge Blackman is discussing--then "the blame should not lie with President Trump." Of course it should. Where else could it lie?

Is it true that "[i]t's not the President's job to vet the pool of Supreme Court nominees?" Well, say rather that it's unlikely that any president will do his own Westlaw searches. But he can’t delegate making judicial nominations, and vetting the pool of potential nominees is much more his job, and much more within his capacity for decision-making, than, say, evaluating nuclear reactor safety or interest rates, or other jobs over which this president insists on control and random tinkering. And picking the people who do the vetting, or at least the people who pick those people, is certainly within his capacity and responsibility. It very much is his job.

Whether he makes a bad choice because he personally chose the wrong judge, because he picked the wrong people to do the vetting, or--and this seems to have been the case—because he made a deal about who would do the vetting, either to satisfy a constituency or to spare himself the trouble of having to care about something boring, is quite irrelevant. He, or his apologists, can't, to coin a phrase, post-emptively pin the blame on unnamed lawyers. To be sure, those lawyers were responsible to Trump. But Trump, like any president, was still responsible for the choices. If he doesn’t want to be blamed for things—and he sure doesn’t! What is his perversion of the office and the rule of law if not an extended temper tantrum over losing an election?—then he shouldn’t have run for president.

As it turns out, I think Trump made some sound choices for judges during his first administration. (At least, given his priors, or more accurately those of more interested and intelligent people working for him. I would have made other choices, unsurprisingly, but I ain’t the president.) Also some terrible choices, and some plausible choices who I think have embarrassed themselves on the bench with blowhard speeches, dubious decisions, and an addiction to dicta. I would guess that the current regime, burdened as it is by a surfeit of misplaced loyalty and ambition and a deficit of intelligence, experience, and integrity, will make a few good nominations and a lot of terrible ones. (I also imagine that first-term appointees in the "terrible choice" and "plausible but ultimately embarrassing" categories will be first in line for any Supreme Court seats. But it's just a guess.) But given that Trump, and his political dependents, are hardly shy about placing him "at the helm" when they want to flatter him (and reap political and financial benefits, and placate the mob), surely they should place him there when—after the fact—they dislike his choices. Especially, it seems, the intelligent, temperamentally judicious ones.

It’s true that, as they say, Trump consistently disrupts all political norms, none more than the sound, sober, and selfless ones. But "the buck stops here" is a pretty good norm. We should totally keep that one.

You Really Have No Idea What or How Your Government is Doing

An interesting article in Puck about a rather literal case of this regime's lack of transparency and its effects on separation of powers. A snippet:

[T]he Trump administration’s uncommunicativeness, and its partisan tilt in what it does share, appears to be next level. Past administrations would send information to both parties simultaneously when communicating with committees, and use staff briefings as an opportunity to build support for a policy on both sides of the aisle. But last month, when the State Department sent budget documents to the House Foreign Affairs Committee, only Republicans got them directly—Democrats had to get them forwarded from their G.O.P. colleagues.

In an administration obsessed with loyalty, it’s perhaps no surprise that access has become another form of leverage. Some disfavored Republicans have also had far less access to administration officials, I’m told, leaving them nearly as in the dark as Democrats. Members more aligned with Trump have been rewarded with better intel.

The dynamic is particularly evident at the State Department, which is undergoing a massive reorganization, and at USAID, an independent agency that is now overseen by Secretary of State Marco Rubio. Statute requires that Congress be consulted on any major changes to the aid agency, but Friday was the first time the House Committee on Foreign Affairs was ever briefed on Trump’s decision to terminate nearly every employee—even though Elon Musk bragged about “feeding USAID into the wood chipper” back in February....

It’s a familiar complaint these days. A Republican committee aide I spoke with defended the decision to cut out Democrats—after all, this person said, it’s not like the D.C.C.C. would brief Republicans on their midterm plans. The implication, in case it wasn’t obvious: Everything is political now....

When C.D.C. programs, funding, and employees were slashed, for instance, the agency initially planned to brief only the Republicans on the House Energy and Commerce Committee. It was only after G.O.P. members pushed to include their Democratic counterparts, a Democratic source told me, that they were given the briefing as well. But on the Senate side, committee Dems were shut out of a similar briefing. They’ve heard nothing in response to questions about the spread of avian flu, over-the-counter drug regulation, and even who is running the agency these days. (There is still no director, and it’s unclear whether Susan Monarez or Matthew Buzzelli are temporarily in charge.)

I would, of course, want to see more reporting on this. (Yet another reason the decimation and fractionation of "corporate" journalism and its replacement by under- or non-staffed tweet-style junk or Substacks is a net loss, in my view.) I don't treat it as gospel. But the reported facts do not strike me as so wholly unsurprising as to raise no special red flags. And the new elements--the open hostility or indifference to keeping even Republican members in the loop and positive view that the executive branch should mostly communicate only with same-party members of Congress rather than communicating as a matter of course with Congress as a coordinate and for the most part the predominant political branch--build on widely reported and acknowledged factors, such as the regime's failure to staff vast swaths of major positions (let alone staff them with sane and qualified individuals), the degree of incoherence and chaos left in the wake of barely targeted or untargeted cuts, and the more deliberate destruction of government agencies that actually monitor and collect data on what your government is doing.

The story notes that, to their credit, in some cases (but not all) the Republican majority members pushed back on regime refusals to inform it, both generally and specifically refusals to brief Democratic members along with Republican members. Of course Congress as a body could push back still more and could treat the executive branch as a coordinate branch rather than a combination political ally and looming election-level political threat. But it's equally clear that to the extent the story is accurate--and, as noted, most of this is uncontroversially true--the blame lies with Trump and his enablers.    

 

Après et à Cause de Nous, le Déluge

From the Wall Street Journal, a fine review of an interesting book (albeit the "history of an idea" book currently is trendy enough to be approaching the point of saturation--a kind of academic press version of histories of mundane products or "...in 10 objects" books) on the history of revolution as a concept and political project. A generous and timely excerpt:

“The Revolution to Come” is a trenchant intellectual history of the modern revolutionary project, seeking to explain both its tendency toward slaughter and its fatal attraction to despotism....What interests [author Dan Edelstein] are not [violent] upheavals per se, but the willingness of moderns to evaluate them in a positive, approving manner as stages in the upward ascendance of history.

For the ancient Greeks, and for millennia thereafter, political turmoil was “revolutionary” in that it was a perennial pathology of cyclical history, bringing only pointless suffering. A model case was the civil war in the ancient city of Corcyra in the fifth century B.C., recounted by the Greek historian Thucydides. The war saw oligarchic and democratic factions engage in unspeakable butchery. “Reckless audacity” and “fanatical violence,” Thucydides wrote, “came to be considered the courage of a loyal ally.” Moderation “was held to be a cloak of unmanliness.” Ghastly bloodletting followed, with no hope of a breakthrough for justice or progress.

To the ancients, Mr. Edelstein writes, “the state in revolution was a perversion of the state, a social hell in which the trappings of society remained in place only to mask the unbridled violence and greed… that really governed human affairs.” Revolutions were calamitous “mutations” to no purpose, adding only tragedy to the affairs of men....

“Modern revolutions crave a Leviathan,” Mr. Edelstein writes. They owe[ ] more to Thomas Hobbes—a great enemy of mixed constitutions and an apologist for absolute sovereignty—than we may care to remember....

The American Constitution, in this interpretation, emerges as an antirevolutionary document designed to frustrate radical progressives. This echoes an anguished cry frequently heard from the political wings, both now and in the past. Mr. Edelstein is at times sympathetic. He writes of the “gnawing tension between our political structures and our political sensibilities” and of a constitution designed to inhibit “swift and extensive political change.” Americans are “moderns living in a world made by ancients.” One can imagine the likes of Elizabeth Warren, Alexandria Ocasio-Cortez or Steve Bannon nodding along.

But “The Revolution to Come” is still harder on the “modern” revolutionaries of the French dispensation. In his best chapters, Mr. Edelstein unfolds the despotism and pitiless violence that stains this tradition....

In place after place, disagreement over the question of what progress meant inevitably spawned factions, strife, conspiracies and atrocities. The drive to centralize power disabled any constitutional mechanisms that might have tamed this factionalism. The contest to control the single central power—through which the future would be defined—became increasingly ferocious. Purges targeted traditional counterrevolutionaries, but even more, false friends: the quisling moderates who might undermine the cause from within. The only solution was radical, reforming despotism. 

“The principle of popular sovereignty could be disregarded in the name of the people,” Mr. Edelstein writes. “It was in the name of a future, improved democratic government by people Y that the present, inferior democratic government by people X must be suspended.”...

This is not an optimistic book. Historical progress tempts but eludes us, Mr. Edelstein suggests. He seemingly regrets the circumspect realism of the American constitutional order, but he cannot applaud a rival revolutionary tradition of carnage and tyranny. He quotes Matthew Arnold’s lament at “wandering between two worlds, one dead, / the other powerless to be born.” In his suggestive final pages, Mr. Edelstein seems to sense a rising impatience for revolution.

“The inevitable compromises of democratic governance,” he writes of our present moment, “do not sit easily with either progressives or traditionalists. Liberal democracy gets worn down by historical expectations or regrets.” This general ennui produces perilous effects: a taste for centralized power, distain for procedural justice, aggressive ideological purity, contempt for moderation. Whatever his intentions, Mr. Edelstein may find that his study of revolutions induces in readers an appreciation for the age-old, Polybian balance of the U.S. Constitution, even as history threatens to overtake it. We should certainly hope so.

 I look forward to reading the book. The review certainly spotlights the timely point that it takes--well, what the hell, call it courage, I guess--to remain fiercely and firmly moderate, and dedicated to orderly and careful rather than revolutionary and swift government, and to resist pressure to do otherwise from vulgar mobs and jargon- or meme-spouting fashionable illiberal elites, in and out of government and academia, alike.  

 

 

While You Were Gawking

For the past couple of days,* many people have, understandably, been absorbed in the fun of watching two ostensibly grown men acting like infants on social media. (As Nick Catoggio writes, "It was a fun day. Are you not entertained?"). One hopes that at least some of that audience has focused specifically on the obvious dictatorial impulses of one of those men, who happens to be president of the United States, as he casually and corruptly threatens--yet again, only this time not through lackeys at the Department of Education--to use ostensible executive power to punish someone who has wounded his ego. Even at such times, it is perhaps worth remembering other things. For instance: Robert F. Kennedy, Jr. is still the Secretary of Human Services.

It's a little thing, I know. But on any given day, while we understandably focus on the president's personal corruption and authoritarianism, it is also the case that entire agencies are busily doing stupid and dangerous things more or less under the radar. As a general rule of thumb, the executive branch agencies in the present regime are likely to act in an especially egregious fashion when one of two conditions applies: 1) When President Trump takes a personal interest in the agency, and 2) when he shows no interest in it at all. In the case of HHS, it seems to be more the latter.

I'm going to go into some detail here on one example provided the other day by the Wall Street Journal, whose reporting on the regime has been superb. It brings us an update on David Geier, who I have mentioned before. Geier is busy seeking access to CDC data so he can "prove" that a) vaccines cause autism and b) the CDC covered it all up. The detail is worth it in part for the sake of fairness and in part because the things Kennedy is doing to the HHS and to domestic and international health and disease policy always deserve the attention. (I like to think of Kennedy as aiming for the top spot on the list of leading causes of death in the United States, as if it's a prize.) Of course--and this is the larger reason for the post, although any given scandal is worth noting for its own sake--it's just one of innumerable daily instances of the dangerous, incompetent, and corrupt ways in which our government is being conducted at the middle and bottom while we are entranced by the spectacle of corruption and incompetence at the top. 

Kennedy himself is, of course, a walking, bear-cub-dumping refutation of the "lawyer as astrophysicist" myth (except for this guy, I guess). His training in American history and literature easily equips him to question the germ theory consensus on disease in favor of a clumsy form of Béchamp revivalism. His apparent view is that a conflict of interest is shocking if it involves working with the actual makers of drugs and vaccines but a mere professional courtesy if it involves suing them, selling basil seed supplements, or acting as TikTok snake-oil vendors. Still, with his continued championing of Geier, a kind of Thomas Fugate avant la lettre figure in his lack of qualifications, Kennedy really hit the jackpot.

You may recall that, armed with a whole entire undergraduate degree in biology and some grad school classes, David Geier was found to have examined (underage) patients, ordered blood work, and otherwise aided his doctor father, Mark Geier, as he recommended that minor patients be injected with Lupron--a drug used, inter alia, to suppress testosterone development and for chemical castration--to "treat" autism. For this, Geier fils was disciplined for practicing medicine without a license; see also 2015 WL 5921325. (Geier père's license to practice medicine was stripped or suspended in multiple states. Mark Geier died in March of this year, fortuitously rendering him ineligible for the post of Surgeon General.) 

At a Senate hearing in mid-May, Kennedy denied reports that Geier, as initially rumored, was actually heading up his predetermined "study" of the "causes" of autism. (In doing so, Kenndy accused Sen. Maggie Hassan, the senator who was grilling him, of spreading defamatory lies. She did get some things slightly wrong, but not the ones he was complaining about. Kennedy being Kennedy, he then proceeded to baldly misrepresent the facts concerning Geier and related litigation. It is always worth remembering that if Kennedy is testifying before the Senate and his lips are moving, he may be lying and is probably wrong.) Rather, Kennedy said, Geier had been "hired by an independent contractor[,] not as an HHS employee," to go through nonpublic vaccine research data to see if the data conformed with what he and his late father had seen on earlier visits. (Geier actually shows up in the HHS employee database not as an independent contractor but as a "senior data analyst.")

How did they get access, if the data was nonpublic? In Kennedy's version, because "[t]he Congress ordered CDC to open it to the Geiers." Another way to put it: Because of pressure from former congressman Dr. Dave Weldon--most recently an abortive nominee for director of the CDC, and a man with a long record of anti-vaccine advocacy, including parroting Kennedy's favorite claims about vaccines and autism.

And how did their earlier visit go? Not great. This letter from HHS to the institutional review board that had approved the Geiers' proposed 2004 study involving VRD data information details the problems, including misrepresenting their plans for the data and accidentally or intentionally attempting to take the data with them without permission. (At least this IRB, unlike one board the Geiers used during their Lupron frolic, didn't consist of "Mark and David Geier; Dr Geier's wife; two of Dr Geier's business associates; and two mothers of autistic children, one of whom has publicly acknowledged that her son is a patient/subject of Dr Geier, and the other of whom is plaintiff in three pending vaccine injury claims.") Things went no better when they returned in 2006 and again violated the terms of the protocol for their data-gathering, possibly through deception.

I suppose the easiest way to make sure someone isn't abusing his access to data is to just hire him so you don't have to think about the details. But it doesn't seem the best way to do it. Nevertheless, it is exactly what Kennedy, and by extension Trump, have done. This NBC piece on Geier puts the point well, in a way that suggests once again the basic theme of the entire second Trump regime: "[W]ith Kennedy at the helm of HHS and Geier working for him, there are no roadblocks left."  

There is nothing unique about this story, except insofar as basically every presidential administration--until now--has generally done its best to keep this agency and especially its major departments run on a professional footing and not have them overseen by rogues. But days of Trump-madness, or even of relative quiet, can go by while one simply forgets that this president deliberately placed domestic and global health policy in the hands of Robert F. Kennedy, Jr.--someone who is not only unqualified to steward them by virtue of experience, temperament, and dishonesty, but positively believes stupid and harmful things. Sen. Hassan got some details wrong, but not this: She is right that Geier "has directly endangered the lives of children" and "does not belong at a government agency that oversees the health of more than 70 million American children." One must surely say the same thing about Kennedy himself.

One tries, in enduring and evaluating this regime, to distinguish between matters of ordinary politics and policy in which, however much I disagree with the policy and the politics, they are only awful, not awful and unlawful, awful and corrupt, or awful and dictatorial. All of these things are worth discussing, but I prefer to avoid characterizing the first category as if it is novel, or as if it is dangerous to democracy; there are enough examples of conduct that falls into the latter categories. I didn't write every time I found a Biden (or Trump I) policy stupid, although I often did. (This is not, however, the same as writing a good deal, in a generalist way, about federal and constitutional law in spaces like this and never talking about current policy and politics--one might say, deliberately avoiding any such discussion, like a lawyer who busily absorbs himself in mastering new corporate transactional practices--in Germany, in the early 1930s. Especially in the case of this evidently and deliberately dangerous regime, that's neither prudence nor specialization: it's a form of cowardice and moral failure.)

The cumulative failures of competence in this regime, its frequent corruption, the ways in which even matters of ordinary politics are folded into utterly extraordinary and starkly personalist and authoritarian conduct, and the ultimate near-impossibility of distinguishing among and between these categories when the executive branch is so frequently committed to bullshitting, and combines extreme garrulousness with a profound lack of transparency, make this approach challenging, to say the least. Moreover, because one train wreck is always followed by four more on the same day, the sheer volume means that if you're going to offer an attempt to fully and fairly describe each dereliction, you will be permanently behind. And that extra effort is valuable if a) you want to be fair-minded, b) you think tweet- and slogan-level politics, however standard, is asinine and degrading, and c) you want to distinguish between ordinary bad politics and unusually bad, corrupt, or unlawful politics. It is fair to say that if you don't care too much about law or guardrails, care very little about results, and care not at all about separation of powers, it's easy for the regime to keep up that pace and hard for citizen-critics to keep up with it.

But it's worth the occasional reminder of something like the sheer fact of Kennedy, or this particular item about Geier, because it is simply what goes on, in surely unprecedented volume, in every department on every day. The presidential bread and circuses (minus the bread, to be sure) are easy enough to track, and Trump, who is basically a Quantum Lichen Person, would be disappointed if you didn't. I followed it, if only for all the awesome, subliterately Riefenstahl-esque homoeroticism of Trump's more fervent fans. But it's worth sparing a thought for all the ordinary acts of governmental vandalism, corruption, and insanity that are quietly committed by hundreds upon hundreds of Trump regime officials every day, from the David Geiers to the even-worse-than-Geiers. All of which, to be sure, should on this regime's legal theory be treated by supporters and critics alike as if they had been committed by Donald Trump personally.

* Of course this was written before the latest conflagration. And this rather goes to demonstrate the points made here: that a) keeping up with the enormity of the regime is a challenge, especially if one wants to do so in a detailed and not a drive-by or tweetish fashion; and b) the Trumpian Sturm und Drang should not detract from everything that his surrogates--which is to say, the entire executive branch--are doing every day to worsen the nation.     

Of Course the ABA Should Continue to Evaluate Judicial Nominees

Way back in the day I took a course on legal reporting from Steven Brill, a legendarily terrifying but superb editor. Memory mixes details, but I seem to recall that he once gave advice on writing profiles, and the gist of it is that if the profile is worth writing, it's worth doing regardless of whether the subject is willing to grant access and to be interviewed. The only difference is that in one case, you talk to two hundred people; in the other, you talk to two hundred and one.

I'm not a particular fan of the ABA--to the extent that it makes sense to refer to it as an "it" or "the," disregarding differences across not only individuals but the distinctive function of particular events or standing committees. But I should think it is a positive for the legal profession, qua professional community, to evaluate judicial nominees, federal or state. The ABA Standing Committee on the Federal Judiciary, which is not quite as old as either Joe Biden or Donald Trump but nevertheless has been around for close to eight decades, has been going about that duty for quite a while. It's a thing that's worth doing, so I don't particularly see that it should matter much to it or anyone else that the current administration--letter signed by Pam Bondi, policy decision made somewhere or other--will "no longer direct nominees to provide waivers allowing the ABA access to non-public information." (The letter also says, "Nominees will also not respond to questionnaires prepared by the ABA and will not sit for interviews with the ABA." Judicial nominee cooperation with the White House is hardly new to the current regime, and is one reason that nominees end up going through so much kabuki in the confirmation process. But it's worth remembering that judicial nominees are under no obligation to listen to the White House on either point. Of course nominations can be withdrawn; but they should do what they think is right, not behave as if they are under orders from the Executive Branch even as nominees.) 

The committee's evaluations have often been criticized; that's fine, and it should take sound criticisms on board, reject unsound ones, and engage in self-scrutiny as well. But it has a useful informational function, most of which can be served without non-public documents, and it should continue doing it; it'll just have to seek to talk to dozens of people for each nominee instead of dozens of people plus the nominee. I might add that given the geographic diversity of the standing committee's members and current and past chairs, another benefit of the committee is that it can provide a wider field of view than the analysis that will be conducted by the more parochial and self-interested Washington, D.C. swamp.

If anything, in an environment filled with grifters, partisan reporters, a highly fractionated media and pseudomedia, and liars, only some of whom are current executive branch officers, its job--performed publicly and subject to the usual scrutiny--is more valuable now than ever. Surely one of the central lessons of the past few months (and years) is that institutions are both essential and troubled, and for both reasons should a) act like institutions, b) do their job and not some other thing, and c) function independently, cultivate independence, and carry out institutional functions without fear or favor and without any particular interest in what the White House has to say about it. 

Trump, Trump/Vance Remoras, and "Virtue Ethics"; or, "Some opine the better course and yet by reason of viciousness choose not the things which they should."

Unsurprising, sublimely ridiculous, intriguing: All this and more is the State Department's issuance this week, via Substack, of a paean to "natural law [and] virtue ethics" as the "underpinning" of the "transatlantic partnership." (It also suggests that "national sovereignty" is part of that underpinning. Inasmuch as the same missive then wades into European law and electoral politics, and given the ongoing desire for to take over allies like Canada and Greenland, I assumed that part was satire, or that the "respect for national sovereignty" language was accidentally copied from some other State Department draft--say, on the whereabouts of Qatar's Noof Al Maaded, freedom of the press and religious freedom in Saudi Arabia, or prison conditions in South Sudan. What with cut-and-paste, these things happen.) 

1) Obviously, the startling part is that there never has been, nor will be, an American presidential regime that is more distant from virtue and virtue ethics, under any reasonable understanding, and more suffused with vice and viciousness, than this one. If someone were to attempt to explain to Donald Trump that a leader who advances "the private good of the ruler" and "his own wellbeing" is politically corrupt and "nothing more than a tyrant," he would surely call Thomas Aquinas a "sucker," deride Aquinas (who he would assume is currently alive) as a "pussy" for knowing Latin, and order Kash Patel and Pam Bondi to investigate him.  

2) It is unsurprising insofar as, although this regime is, finally, mostly an immoral and often criminal enterprise, it is also the product of a new non- or anti-conservative fusion. The regime is divided between those who have contempt for ethics and morality as such and think intellectuals and moralists of any political stripe are wusses, and those who merely are immoral and unethical--or at least irredeemably complicit in immorality and unethical conduct--but who delight in studying and invoking morality, and are willing to serve as antiliberal remoras fastened to the body of a more amoral, less pseudointellectual, distinctly short-fingered shark. (I am referring to the regime at the political appointee level. I make no assumptions about its voters.)  

The author of the State Department Substack, Samuel Samson, whose title is "'Senior' Advisor for the Bureau for Democracy, Human Rights, and Labor," appears to fall into the latter category--remora, not shark. ("Senior" here is a term of art, evidently, given that he graduated from high school in 2017, spent three years on the fundraising and networking side of J.D. Vance's government-employment agency, and has put in a whopping five months at State.) To his credit, he is quite candid about his job description: "the infiltration of liberalism’s powerful institutions by right-wing post-liberal agents." (Yes, of course he is fond of Adrian Vermeule. He quotes Vermeule's decoder-ring article like a sales trainee who's just been handed his first copy of Dale Carnegie.) Based on his path of study, I believe Samson is quite sincere about his interest in the virtuous life. But one harbors doubts that all of his fellow travelers will be quite as staunch in the face of the temptations of "material gain, power, prestige, and social inclusion," as they suffer through painful years of cocktail parties, fancy titles like "Senior Advisor," and cool Signal chats. As a noted liberal and celebrated critic of the dangers of concentrated authority warned, power does tend to corrupt.

One wonders, not so incidentally, in what manner Samson reconciles and triangulates his interest in virtue ethics with two other beliefs: on the one hand, a belief that "[l]imitations on speech are not only inevitable but necessary for any society to flourish," so that we should "promot[e] speech that supports our morals and values and prevent[ ] speech that harms them," including "restrict[ing] the promulgation of leftist ideas...in the home, in the classroom, or in the public square"--and on the other, the apparent belief that the German right-wing Alternative für Deutschland party is being unjustly persecuted (by domestic law, a detail I would have thought relevant to one who rhapsodizes about "national sovereignty").

Doubtless there are a number of ways to square the circle; that's why you can never trust smart people. But the most obvious and parsimonious answer is that Mr. Samson, the State Department, and Trump and Vance all sincerely believe that AfD--the völkisch party that was too totalitarian for Jörg Meuthen and Bernd Lucke, sufficiently soft on Nazis and fond of Russia to discomfit an entire continent's worth of ethno-nationalist parties, that coincidentally would like to forbid both circumcision and access to kosher meat, and that has the darnedest time figuring out whether to distance itself from neo-Nazis and racial nationalists--falls within the category of "speech that supports our morals and values" and is consistent with "objective good." I personally would prefer it if--given the background belief that virtue is important, free speech is a lie, and bad speech should be suppressed--our current executive branch was much clearer about the vices of German ethno-nationalism. But, hey--what does some guy named Horwitz know about German ethno-nationalism, right? I'm sure there must be other "Constitutional Scholars" around with thoughts on the subject.    

3) However scarce virtue is in the Trump regime in reality, the stated interest in virtue ethics is also intriguing, in two senses.

One is intellectual and utterly fanciful: Imagine actually treating virtue ethics as a useful guide to the current regime's rights and wrongs! Imagine how one might view the Trump regime through a lens that took seriously, for example, the notion that rashness or recklessness is a vice? Or how one might view Trump's policy-making through the lens of the view that prudence demands "diligence in obtaining information and modifying one's conduct in light of it?" Or, more generally, what aretaic-centered scholarship might have to say about the duties, not powers, that necessarily attach to a unitary executive theory of presidentialism--both in general and as applied to this regime? Is it accurate to say that a president who chooses incompetent, corrupt, unqualified, or dangerous and lunatic subordinates, or refuses to get rid of them when their incompetence or corruption have been made evident, is a "vicious" president? In what ways should any leader display the self-control and avoidance of excess in rhetoric and ambition that are central to the executive virtue of temperance? In what ways has this president actually done so--or failed to do so? And if virtuously temperate agency officials should "avoid an excessive and deficient relationship with alcohol," how on earth do we assess the virtue of officials who prefer ketamine, or the president who turns a blind eye to them? Is it just possible that a president who treats every national holiday as an occasion to call fellow citizens "scum," and uses executive orders and Justice Department lackeys not for lawful purposes but to punish critics and opponents, is lacking in the virtue of magnanimity? Perhaps more crucially: What are the obligations of a virtuous public official who is subordinate to a vicious president? Does he or she not have an obligation either to criticize that leader or to refuse to continue serving him? What about citizens at large and even citizen-scholars? If virtue and character, understood through virtue ethics or otherwise, are a central, essential part of our understanding of presidents and presidentialism, shouldn't we subject failures of virtue and character on the part of presidents and subordinates--cruel, capricious, and detestable behavior, for example--to very public scrutiny and criticism? If not, do we fail to display the courage--properly defined--that virtue ethics demands of citizens and scholars alike? 

Obviously, one could go on. To care about virtue, virtue ethics, and the obligations of public officials in a regime led by a man who is the Albert Einstein of official corruption and the Neil Breen of Literally Everything Else is to live in a target-rich environment. If the questions offered above suggest that Trump apologists who believe that virtue and character are relevant to presidential power, limits, and performance, and who comment on many other aspects of the current regime (mostly for purposes of criticizing judges) but remain essentially silent about the actual conduct of the man in the office and his subordinates, are failing on a moral, professional, and civic level, then so be it. After all, they are, and it would be disrespectful not to say so. 

But there is a more scholarly and less political point to be made, which is that the second Trump regime is genuinely a goldmine for study and commentary on these questions. Those who support unitary executive theory surely fall short if they don't elaborate on its implications for the internal moral and aretaic aspects of that theory, both in theory and in Trumpian practice. And although law and virtue ethics has been an ongoing area of interest for many writers, my sense is that many or most of them have failed to really dig into virtue ethics' implications for the executive. The article linked to is a relative exception; most of the scholarship on virtue ethics and the executive branch ends up in the usual place--focusing inexorably on judicial review, formalism, and originalism. (Not entirely coincidentally, I think, that is roughly where most Trump apologetics from the very few law professors who find something to defend start and stop: by talking about the judiciary. Trump may yet end up as the "conservative" president least studied and least discussed by ostensibly "conservative" Trump partisans in the legal academy.) There is much more to be studied and written, and an authoritarian government run by a man who embodies so very many vices and so vanishingly few virtues is surely the place to start.

Finally, the virtue ethics connection is intriguing because it suggests still-underreported aspects of the uneasy fusionism of the Trump regime. Because the Trump regime--by focusing on personal loyalty and on absurdities like saying (or being willing to say) that the the 2020 election was stolen--pre-selected for appointees who lack either morals or backbones, and because it is both secretive and punitive, it can be easy to make unwarranted assumptions about ideological or policy agreement, let alone friendly relations, among Trump regime officials. (It helps that Trump has appetites and prejudices, generally ignorant ones, but few interests, so that the vast majority of actual policy-making is being done by people other than the president. Not that this is the first time that an aging and semi-disconnected executive has left this kind of vacuum to be filled by others.)

Certainly these things have been noted at an abstract level, with talk of "techno-libertarian" and "Catholic conservative" poles of influence, although I should think this leaves out those, the president included, who are primarily interested in themselves and would be happy to skip the dorm-room philosophy debates. But they haven't been much dug into at a more concrete level. I am more than happy to credit some number of people influenced by but at one remove from people like Patrick Deneen with actually possessing the kinds of values that would find the White House's culture of bribery and graft repellent, while finding them entirely dangerous for quite different reasons. (I am willing to credit those who have been influenced, not those wielding the influence. Never underestimate the cynicism of an entrepreneur.) They are, of course, completely on the hook for the immorality and graft of the administration they joined. If a unitary executive with strongly authoritarian tendencies means anything, it means that the president is responsible for every wrong committed by his administration, and his officials are morally complicit in everything the regime does. Any moralists who are willing to pretend to believe the election was stolen, or that Robert Kennedy or Mike Davis have a lot of good ideas, or that Amazon really wanted to make that documentary and wasn't just paying into a criminal protection racket, or who are willing to remain silent about such things, merely for the sake of a longer-term project will still face their eons in purgatory--some perhaps longer than others. But there is much more reporting to be done about just whether and how the two (or more) wings get along on the ground, apart from what I assume is a fair amount of semi-submerged mutual contempt. I imagine that each side thinks of the other as the useful idiots in the room. Readers are welcome to send me sources if they have already seen good reporting on this question, but much more remains to be done. Happily, both the natural instability of any Trump administration and the ultimate incentive to take out the long knives means that a good deal of this will eventually come out.

In the meantime, one imagines that the two factions can at least find a certain amount of togetherness by sending each other pro-Putin poetry.

Score One For A.G. Sulzberger

I don't read many book-length works by newspaper reporters, for the same reason I read fewer law review articles than I used to: At my age, I consider it reasonable not to suffer through more bad writing than is strictly necessary. Even so, I have long had a pre-order in for Jake Tapper and Alex Thompson's book Original Sin, and today's review in the Times is certainly a nice amuse-bouche before the main event. Discussion of the book takes my recollection back to a briefly popular media-centered discussion from Biden's presidency, centering on whether the Times was being tough on Biden about his age because its publisher, A.G. Sulzberger, refused to give the Times a sit-down interview. Although the whole thing will befuddle those who think, with or without specific reasons, that the Times was always easy on Biden, the Biden administration and some of its apologists were convinced otherwise.

This Politico story gives much of the background. It is relevant, perhaps, to both current criticism of the press for "covering up" problems with Biden and retrospective understanding of how and why the administration did its own covering up, to note that the Politico story, which was published a couple of months before the disastrous June debate, describes administration anger at the Times for Peter Baker's "unrelenting focus on Biden’s advanced age." It is likewise now noteworthy that the story notes Biden staffers' view that the Times's perceived harshness was especially wrong given an upcoming election that they viewed as "a matter of democracy’s survival." So did I, more or less, and I sure do now--and Biden and his staffers could not have failed that test more completely.  

One striking element of the so-called feud between Biden and the Times was the Times's push for a sit-down, on-the-record interview with Biden and the Times. As the Politico piece notes, every president since Roosevelt had sat for such an interview--except Biden, who had "sat for interviews with only two print reporters in more than three years" and never did so for the Times. The story notes:

Getting the president on the record with the paper of record is a top priority for publisher A.G. Sulzberger....But the pleas for an interview have gone nowhere. As Sulzberger often tells colleagues and as he and Kahn have stressed in private conversations with the administration, every modern president since Franklin Delano Roosevelt has done an interview with the Times. That, however, is an argument deemed uncompelling by Biden aides and one that, to some White House officials, smacks of entitlement....In Sulzberger’s view, according to two people familiar with his private comments on the subject, only an interview with a paper like the Times can verify that the 81-year-old Biden is still fit to hold the presidency.

The whole story is worth reading or rereading, for those who are litigating or relitigating all the Biden/age/press issues. Much press criticism is like most cultural and political debate: it starts with the desired conclusion and works backwards. So views on the contretemps tended to follow political lines. But it's certainly worth noting that a great many people took the Biden administration's side, thinking it hoity-toity of the Times to insist on an interview and accusing Sulzberger of bending coverage against him because of it. (Unsurprisingly, one of those people was Margaret Sullivan, a former Times public editor and a terrible press critic. And here's a two-fer, with Sullivan and Dahlia Lithwick. And one from another terrible press critic, Dan Froomkin. Pardon the pun, but those views didn't age well.) Sulzberger denied directing coverage, while insisting that, "For anyone who understands the role of the free press in a democracy, it should be troubling that President Biden has so actively and effectively avoided questions from independent journalists during his term....Mr. Biden has granted far fewer press conferences and sit-down interviews with independent journalists than virtually all of his predecessors." (Another bad press critic, Jeff Jarvis, called the first sentence a "hissy-fit.") 

I'm not a big fan of Sulzberger; the Times is not the paper it should be, and Sulzberger dishonored the paper when he caved to pressure and fired James Bennet. But one must give him his due on this one. The Times and other media outlets will get their share of criticism for possible failings to more aggressively investigate Biden's condition, just as they do and will for failing to more aggressively investigate Trump's condition. But it's hard to do a good job investigating the condition of a man who deliberately shielded himself, and was shielded, from public exposure to anyone who might be unfriendly, or at least indifferent to his wants. Sulzberger was right to push.

I hope this adds a nail to the coffin with regard to the usual euphoric writing about why the partisan, under-resourced, and under-trained "citizen press," or "non-corporate journalists," or whatever you want to call them are a fine and fitting successor to the more staid but more professional standard-issue press. More importantly, I hope it is a useful reminder that every time administrations, from Obama on, have talked about wanting to "speak directly to the people" and not have to communicate through an arrogant, non-substantive, or old-fashioned press, what they actually mean is that they prefer to propagandize in an unmediated fashion. (This is why, although I give Trump favorable marks for speaking to the press regularly, despite his administration's general lack of transparency, I take a star back for his administration's elevation of social-media worshippers, whose fawning questions embarrass even his fans.)         

 

The "Boy" Pope and the Continuing American Gerontocracy

One incidental observation about the new Pope: He is "young." Well, not actually young. But he is "only" 69, with, one hopes (but is far from guaranteed at that age) the energy, well-being, and sharpness of cognitive function to shoulder a burdensome office honorably. (I do not include here the aid of prayer and providence, which I take seriously but are out of my bailiwick.) Born in 1955, Leo XIV is younger at election than any Pope since John Paul II.

By contrast, Joe Biden, whose ongoing, self-negating effort to "burnish his legacy" shows his continuing failure to grasp that it was precisely the chip-shouldered effort to try to use his presidency to build a "legacy" that fatally damaged both the presidency and the election, was born in 1942. Donald Trump was born in 1946. The health and acuity of both is open to serious question. (Cognitive function being an iceberg most of which is beneath the surface, Trump's volubility should not be mistaken for proof to the contrary.) Both men were too old honorably to run or serve in 2016, 2020, 2024, and today. By my lights, two of the current Supreme Court justices ought to retire this year and another two, if they were acting honorably, would have retired several years ago. (I would be inclined to give Roberts and Sotomayor, who at 70 really ought to retire, a bye, given that the current president is an authoritarian, highly corrupt, and creepily obsessed with personal loyalty. But I would note that it's that attitude, combined with the justices' arrogance, the complicity of their family and friends, and the idolatry of their fans that led to this state of affairs in the first place.) Some 20 percent of the House and 30 percent of the Senate is 70 or older. 

No wonder that the new Pope seems like a font of vitality next to these individuals. 

 

...and Narcissistic, Megalomaniacal, Anti-Constitutional Presidentialism

The first time, I had two things to do—run the country and survive; I had all these crooked guys. And the second time, I run the country and the world.

This quote will be shared often and tediously. Nevertheless, those who study the Constitution and retain some loyalty to it should still take note of it and retain their capacity for astonishment, the absence of which is the surest sign that one is either dull-witted or has willingly fitted himself for the abbatoir.

One does not, in sooth, expect Donald Trump to have either much knowledge of the Constitution or the slightest interest in it, both points that I take it are viewed as positives by many of his mass of supporters. ("Supporters" as opposed to his voters, whose individual reasons to vote for him and whose expectations surely vary widely. And "mass" as opposed to his supporters in the intelligentsia, who appreciate Trump not for his "ideas" but, variously, for his willingness to offer this or that transactional good for which they have a high-intensity preference and are willing to ignore a few principles and scruples to see it achieved; for the personal benefits he may provide them, or the whips he may use on their perceived enemies; for his provision of some ersatz form of post-liberalism as a kind of entertainment, from whose devastating real-world effects they are largely insulated by wealth and tenure; or for his skills as a wrecker, which they imagine will clear the ground for the fantasy regime they eagerly await.) Normally, Trump supplies the desire, whim, ignorant belief, or impulse, or the perceived slight to which he is responding. It is left to whatever semblance of a lawyer, expert, or intellectual can still be found--in, as the line goes, the nearest gutter--to fit that impulse to a form of words, a dangerous, overly capacious, formerly-disdained, and/or dishonestly* misinterpreted statute, a tyrannous interpretation of constitutional text, later-acquired facts or allegations, a pretense of a vision or philosophy, or, often enough, an inconsistent, ever-shifting, or revisionist set of pretended justifications for whatever it is he just wants to do.   

For this reason, whatever else one might think of his garrulity and lack of restraint, the fact that he has turned Twitter and TruthSocial into the semi-official means of government communication, and the fact that he thinks and speaks with the frequency and intellectual limitations one has come to expect of social media addicts, we should be grateful for his logorrhea in this instance. With or without a theory of a unitary executive on steroids, Donald Trump's constitutional vision is what Donald Trump--not his mouthpieces, apologists, or supplicants--say it is. If you want to know what the Khmer Rouge wanted, you don't ask the ghost of Malcolm Caldwell; you count the damn skulls. So I am in this sense grateful to Trump for offering a clear, succinct, and precise account of what he thinks the presidency is, what he thinks of Congress and the states, what he thinks of the Bill of Rights, what he thinks conservatism is, and what he thinks of every other country on the planet. Doubtless I would have disagreed with and opposed him on many things, but all things considered I would have preferred President Franck.  

One notes in passing that, as is to be expected, Trump manages multiple lies and errors several times even in so short a span of words. And that the people he slanders as "crooked" were, in many cases, precisely the ones who made some measure of lawful and competent government possible in the 2017-21 Trump presidency. In their absence, we have only the man and his words, which we are now obliged to take both seriously and literally.

*The most striking thing about AG Bondi's memo last week rescinding the Biden administration's policy against issuing subpoenas to journalists was not the fact of the rescission, nor did it have anything to do with its legality, its open and vulgar partisanship, or even the Trump regime's general hostility to mediating institutions of all kinds. It was the fact that Bondi's memo cited, as an example of "unauthorized disclosures that undermine President Trump's policies," this very news story, which reported that the Trump regime's basis for an invocation of extraordinary coercive power was a knowing lie. Judges considering the degree of deference they owe to the justifications and purported facts proffered by the regime, and the degree to which they should presume any regularity on the part of the regime, are, I'm sure, aware--and certainly can and should be--of the extent to which its law enforcement apparatus's policies and actions are designed to enable it to lie to the courts, among others, without the inconvenience of contradiction by the truth. 

Trump/Somoza Presidentialism

The Wall Street Journal, which has been doing a bang-up job covering the administration, has an excellent story on "The MAGA Lobbyists Upending Washington With McDonald's and Bear Hunting." The headline is worth setting out because nicely captures the vulgarity of what the piece describes. To be sure, this is not surprising, matchless vulgarity being the house style of the regime. (Those Democrats who have emulated this style intentionally, and those who actually are vulgar and not just putting on an act, are fools and are dishonoring themselves.) The only problem with the headline is that one might read it as being about lobbyists who have cultivated new friends, as opposed to friends or relatives of the Trump regime who have decided that the best way to monetize their friendships is as lobbyists-- or, as the story ultimately suggests, that it's about people who are unequal measures of both.

At a higher level of abstraction or fatuity, one could obviously say this is nothing new. ("Take a deep breath," as the saying goes, although I will note that the same words are spoken right before a ship sinks.) As the story also suggests, however, that's not really correct. The argument against lobbyists being pure, vulgar influence peddlers has always been that at their best they can provide specialized, knowledgeable information about the value of their industry or the policy they advocate, the consequences of some proposed course of action, and so on, with the assumption, generally warranted under conditions of ordinary government, that many of the the people they are talking to are equally expert and experienced congressional staff and civil servants. The model on display here is the vulgar influence peddler model. The Journal puts it more diplomatically: "Job credentials that mattered in the past are increasingly irrelevant today." The big comers are not those bringing expertise, but those who wield influence-by-acquaintance: "hyper-connected Trump firms," where the connection may or may not include knowing anything useful but definitely includes being a hunting buddy of the president's son. (This piece, by one of the nation's several million play-journalists and "influencers," further illustrates the point. It is utterly credulous but useful in being so...well-connected. It provides a useful account, if one reads between the lines a little.)

This approach to lobbying as a pure, simple matter of proximity to friends and family and other members of the Boss's coterie is hardly new in the United States, as the embarrassing career of Hunter Biden illustrates. But neither is it the norm or the sum total of the activity of lobbying, or at least so one would have said prior to late January. It is, however, standard fare for corrupt authoritarian, personalist (and see here), mercantilist, clientelist, etc. regimes. (Wikipedia sometimes really comes through splendidly: "Personalist dictators typically favor loyalty over competence in their governments and have a general distrust of intelligentsia. Elites in personalist dictatorships often do not have a professional political career and are unqualified for the positions they are given....[P]ersonalist dictatorships are more prone to corruption than other forms of dictatorship.")

Reading the story, I was reminded of the Somoza family in Nicaragua, of Putinism and Peronism, of Kazakhstan, Turkmenistan, and Belarus under Lukashenko, of Maduro's Venezuela, and of Nazi Germany. If public law scholars--and judges--want to keep abreast of things, they would do better to read Erica Frantz, Luca Anceschi, and Natasha Ezrow than Story, Blackstone, Coke, or Cooley.   

Today in Presidential Corruption News

Imagine that the political donations that rented the Lincoln Bedroom in the Clinton era were actually personal payments, made directly to the Clintons, and paid immediately, to bypass all the ordinary-political-corruption norms about waiting until someone is out of office to unfairly enrich them. Imagine that rather than reduce the income stream by limiting himself to one bedroom, Clinton rented out the entire, pre-tacky-gold-fixtures White House. And then imagine that to sweeten the deal, the President offered to personally service each of the guests. 

Welcome to your current president. His family memecoin business was already inherently corrupt. Then it was factored into the corrupt personal monetization of regime policy. And now, having found the initial windfall from the memecoin insufficient, and apparently too impatient for additional profits, Donald Trump is now--not to put too fine a point on it--whoring himself out more aggressively.

The flashy online announcement called it “the most EXCLUSIVE INVITATION in the World,” a chance to have “an intimate private dinner” with President Trump at his members-only golf club in Virginia, followed by a tour of the White House.

A seat would be reserved for each of the top 220 investors in $TRUMP, a cryptocurrency that Mr. Trump launched on the eve of his inauguration....

The effort was, in effect, an offer of access to the White House in exchange for an investment in one of Mr. Trump’s crypto ventures....

As news of the dinner invitation spread on social media, the memecoin’s price surged more than 60 percent, suggesting that investors were rushing to accumulate enough coins to qualify for a dinner seat.

“This is really incredible,” said Corey Frayer, who oversaw crypto policy for the Securities and Exchange Commission during the Biden administration. “They are making the pay-to-play deal explicit.”

A business entity linked to Mr. Trump owns a large tranche of the coins, meaning the president personally profits every time the price increases, at least on paper. Mr. Trump and his business partners also collect fees when the coins are traded, a windfall that amounted to nearly $100 million in the weeks after the coin debuted in January.

Of course, the president has already disbanded the DOJ cryptocurrency prosecution unit, and the SEC has already announced its desire not to stand in the president's industry's way.  His conflict of interest policy is less rigorous than Caligula's. And his law enforcement consists of the author of a children's book that, on a charitable reading, is a thinly veiled perverse fantasy about himself and the President. (But it wasn't an audition!) 

Why bother recounting the obvious? Four reasons. One, of course, is sheer anger at the bottomless pit of corruption that is Donald Trump when not surrounded by adult minders, and at his befouling of American institutions. Another is that it is so easy to focus on the many ways in which he is otherwise harming and dishonoring his office and the nation--his wreckage of the economy, his service as adjutant-general to Russia's quest for Lebensraum, his violation of law and legal norms, his wholesale violations of due process, his eagerness to rent out quasi-concentration camps abroad, his desire to lay waste to public health and encourage disease and death at home and abroad, the fundamental vulgarity, tackiness, sloppiness, and illiteracy with which he infects public office and public discourse, and so much more--that one can easily neglect his now-unrestrained personal vice and corruption. That would be unfair. We must take him for all in all. And all in all, this is a man who makes Idi Amin look like Mother Teresa. Third, given the ways in which policy and personal gain are intertwined in this regime, not just at one level but throughout a "unitary" executive branch that has pledged itself to his personal service in a branchwide violation of the constitutional oath, one must note again that denying this regime a presumption of honesty, sincerity, and regularity is no departure--why grant a presumption that every day is loudly refuted?--and granting it those presumptions would be a farce and a willful lie. Judges are obliged to be impartial to the parties before them; they are not obliged to be ignorant, or impartial about the rule of law itself.  

Finally, as has been wisely said, one must live up to the intrinsic integrity of the academic enterprise, particularly as it relates to the legal profession and public law. Integrity demands that one profess the truth. Respect for the rule of law, and a desire not to encourage a "disillusioned and cynical" view of the rule of law, likewise demands that one note total, blatant, vulgar corruption of the office, "without fear or favor" and without engaging in "tendentious" apologetics. Any "emphatic subscriber" to anything faintly resembling the "rule of law" recognizes this, sees this personalization of the executive branch for purposes of self-enrichment for what it is, and perforce must say so.    

I note, in passing but not without shame, that this is the man who invited himself to speak to an audience at the University of Alabama, and to whom the university half-capitulated by having him speak at an address prior to the commencement weekend. (And even in this, he could not stifle the impulse to engage in a narcissistic, self-idolatrous lie about it.) One hopes that, if the university was trying to buy his goodwill or at least buy off his always-threatened hostility, they tried to win the liberty of our own graduate student as part of the bargain, however corrupt such a use of power would be. 

Do Not Confuse Unitary Executive Theory With Being Narcissistic, Corrupt, and Foolish

Imagine that you are the chief executive of a very large and diverse company that has not filed for bankruptcy multiple times. Assume that your goal is for the company to thrive, rather than for self-aggrandizement or self-entrenchment. How would you run it? If you established a committee to examine health problems at a major plant, would you appoint as its chair a new employee with only a BA in biology, whose most noteworthy past experience was practicing medicine without a license? If the company's CFO pointed out that a new initiative--say, reneging on agreements with your main suppliers--was having disastrous effects on earnings and depleting trust in the company, would you listen, or attack the CFO? When hiring, would you scrap your successful, stable, industry-standard set of hiring standards? If your company's largest divisions were headed by morons and desperately under-staffed with the upper management who might assist those morons, would you reorganize--or would you instead lavish praise on the morons, and assure shareholders and customers that it was no big deal? 

The answers to these questions are so obvious that you could even get a correct response from a law professor. Nor will it shock anyone, no matter their politics, that the Trump regime in the past couple of days has provided at least a hat-trick of wrong answers. Trump has declared his full confidence in Defense Secretary Pete Hegseth, who is obviously not competent to run his department and has fired or lost those who might help him. His State Department--and it must be said that this regime's approach all along has been to run State from the White House, while complying with Marco Rubio's apparently bottomless appetite for humiliation--is looking into eliminating the foreign service exam and replacing it with loyalty-based criteria that ignore any longer-term interest in having stability in foreign relations across administrations. And he continues to attack the chair of the Federal Reserve, with the result, if not the intent, of supplying visual learners with a precise chart of the level of confidence placed by the world in Jerome Powell versus Donald Trump:

And it's just Monday. [Okay, now it's Tuesday. The chart above now looks even worse and the regime's behavior on all of these issues has not gotten better. The challenge of this administration is that every day brings five new terrible choices and fifty new or newly revealed lies--for instance, Rubio's lie about a State Department overhaul--and its programmatic lack of transparency makes it difficult to track. Happily, its infighting and indiscipline, and the constant war over who can be closest to the throne, means it leaks like a sieve.]  

My point here is not to criticize Trump, at least not directly. (Of course he should be criticized for all these things, and for whatever he's done in the past week that we don't know about yet--not to mention the things it is harder to find out about, like whether Trump's cronies suggested to Warner Bros. Discovery that the best way to stay safe would be to emulate Jeff Bezos's Amazon and provide an in-kind bribe by paying a Trump family member. Although the two are inextricably intertwined, it is important, in the welter of regime actions that merely constitute terrible policy, not to forget the personal corruption.) Rather, it is to offer a reminder that none of this is synonymous with unitary executive theory. The two should be understood as different, although obviously closely related, matters.

It is absolutely true that the Trump regime has taken a broad view of unitary executive theory and pushed that position aggressively. (This Ross Douthat interview with Jack Goldsmith nicely lays things out.) And unitary executive theory has a lot to say about Congress's ability, had it the guts to do so, to rein in the regime's excesses. But once, under its auspices, the executive branch is viewed as operating top to bottom according to the president's design, this general architecture says virtually nothing about how the chief executive chooses to organize and manage his branch. The executive branch is a very large enterprise, with at least twice as many employees as Walmart, the largest private employer in the United States. Even (or perhaps especially) if one were to posit, wrongly, that Congress has nothing to say about how that branch is organized, the head of this unitary organization has no obligation to organize and manage it badly, to attempt to make every decision personally--or to make every decision personal, as this regime does. A decision to exalt personal loyalty over loyalty to the Constitution and over competence and experience; a decision to contract out key diplomatic jobs to a gormless real estate developer pal; a decision to let one's lieutenant in one's chief policy priority skip an actual chief of staff and rely on a close friend as de facto chief of staff: these and a hundred other choices are not necessary consequences of a belief in unitary executive theory. Rather, they represent Donald Trump's version of what it means to run any large enterprrise.

It's understandable that news articles and polemics often conflate the two. And it may well be that a unitary executive approach renders the executive branch especially susceptible to all these problems, especially in the absence of a backbone-possessing Congress and in light of the extent to which party politics, polarization, and an unserious legislative bench have laid waste to the hoped-for mechanics of Federalist No. 51. That concern should be taken seriously. Depending on one's interpretive methodology, these manifest problems may weaken the case for aggressive application of the theory. By weakening or eliminating many of the justifications for any presumption of regularity and constitutionality on the part of the executive, the executive branch's ongoing mismanagement certainly, in my view, counsels strongly in favor of more careful, forceful, stringent, and skeptical judicial scrutiny of this executive branch. But the mismanagement is not the same as the theory.

I'm not arguing for or against the theory. But perhaps those who do advocate for a unitary executive should turn their thoughts more closely, and their writing more explicitly, to the question of what sound administration should look like under a unitary executive, and what ethical and oath-driven principles should guide it. Perhaps the needed work right now is not in offering further historical detail on why the president may fire his subordinates, and more practical analysis, legal and otherwise, about why he is not obliged to, and should try to keep the smart ones and cut down on the morons instead of championing them. They might also offer more work on why the notion that the president possesses the full share of Article II power says nothing about whether any personal loyalty is owed to him by those subordinates. (It is not.)

Whatever the answers to these questions are, they certainly won't look anything like what we are living through. No executive of even marginal competence would run any large enterprise like this. The lawyers may supply the theory; but at every step of the way, albeit with a great deal of help, Trump is supplying the disastrous practice.

In all of this, there is one irony that under other circumstances would be delicious. It's not unfamiliar, since it helps define the difference between the first Trump administration and the present regime. It is this: As bad as things are, the reason they are not worse on a day-to-day basis is the presence of those long-serving, dutiful professional federal employees who have not yet been fired or forced out. Once again--this time over fierce resistance--Trump's best hope for avoiding the consequences of his own unfitness for office is the "Deep State."  

FedSoc Webinar on the Weaponization of the Justice Department

Today at 11 a.m. Eastern time, the Federalist Society--lately the object of conspiracist rantings from White House habitue Laura Loomer, whose basic accusation that its patrons, by holding on to conservative views, are not personally loyal to Donald Trump differs from the core managerial and constitutional theory of the Trump regime only in its specifics but not in its "principles"--holds a panel titled "The Weaponization of DOJ?" Registration information is here. 

The question mark is of course unnecessary. Small and twisted minds beget small and twisted missions, and the primary mission of the ostensible leaders of the Justice Department, and the only mission of the man who is responsible for it, is vengeance against alleged enemies. (Although this appears to be more true of the White House and the FCC than of the DOJ, I imagine that if it has not already, it will soon add to its basic mission statement the corrupt exaction of financial and other forms of tribute, one of the few areas in which the Attorney General has expertise and experience.) 

I have meant for weeks to point out the necessity, for any lawyer, of watching or, if one can't stomach the visuals, reading the transcript of Trump's March 14 speech at and to the Justice Department. It seems silly--not un-lawyerly, but silly--to debate only the finer points of questions like, "Is the Trump regime lawless?" or "Is Trump weaponizing the DOJ?" when the president, in a regime devoted to the proposition that the president is the government and vice versa, actually stands up in the middle of Main Justice and makes clear that vengeance without justice is his goal. Around the time of the speech, I looked up past speeches delivered by presidents at Main Justice. Among them were speeches by Herbert Hoover, Harry S. Truman, Ronald Reagan, George W. Bush, and Barack Obama. None were terribly impressive, none were terribly objectionable--and none of them was steeped in filth, hatred, and paranoia at all, let alone in the way that Donald Trump's remarks were. No lawyer who is still a lawyer in any useful sense of the word, a lawyer can hear or read his words without visceral disgust and a renewed commitment to the defense of the rule of law against the chief executive who is its chief enemy. Not to put too fine a point on it: Trump's DOJ speech is a must-read in the same way that millions of decent people forced themselves to read Mein Kampf.        

The Truth is a National, ie. Personal, Security Threat; or, King Henry With Fewer Wives

The Trump regime paused briefly from its efforts to immiserate the American people wholesale and decided to go retail for a bit, returning to one of Donald Trump's chief regime policies: revenge. Several executive actions today are of particular note. One is an executive order and the others are memoranda to the heads of departments and agencies--although all of them are, in effect, part of the Trumpian taste for executive orders of attainder. 

One involves an executive order against the law firm Susman Godfrey. It's what we have come to know as standard-issue regime pettiness, although surely not petty to the law firm or to lawyers and decent citizens. Susman Godfrey's chief sin, first on the list in the executive order? The regime's lawyers--one imagines a couple still work there--put it in fancier language, but not so fancy as to obscure it. Susman Godfrey represented Dominion Voting Systems, which sued Fox News for defamation and received a settlement moments before trial, perhaps because Fox News in fact defamed Dominion Voting Systems. It is not clear in itself how much Trump's anger has to do with the crime of suing-the-media-while-not-being-Donald-Trump and how much it has to do with Dominion having had the temerity to interfere with the lie that the 2020 election was stolen.   

Two other orders are similarly grudge-driven. One is aimed at Miles Taylor, who Trump accuses of "disclosing sensitive information"--although not this sensitive information, which is fine. (Remember: "For my friends, everything. For my enemies, the law.") While I am normally and rightly queasy about a White House going after leakers, I certainly do not think doing so is per se illegitimate. Calling Taylor a traitor and ordering our cosplaying fool of a Homeland Security secretary to investigate him, however, is another matter. (Kristi Noem's recent social-media pictures put me in mind of other, similar photographs.) Of course Trump's interest is not in national security, but in getting even. 

Finally, and right in between the two, is his memo targeting Chris Krebs, who had the misfortune to take his oath and his office seriously while serving as director of the Cybersecurity and Infrastructure Security Agency during Trump's first term. As with Susman and Dominion Voting Systems, Krebs's greatest crime was insisting on the truth--or, as the presidential memorandum puts it, he "falsely and baselessly denied that the 2020 election was rigged and stolen." Perhaps that answers the question: Susman Godfrey's crime was not suing Fox, but doing so on the basis that claims of a rigged election were false. 

The election, of course, was not stolen. I find something especially offensive to anything like common decency, a stench in the nostrils, to see an official memorandum targeting an individual who did his duty and basing that vendetta on a blatantly false proposition, one that in the mind of this president and his lieutenants occupies the status of the propositions in the Oath of Succession in 1534. As the quote goes, "If [the Earth] is flat, will the King's command make it round? And if it is round, will the King's command flatten it?" No. But it can, in an administration run by a "King" whose councillors make us weep with longing for the intelligence and relative moral restraint of a mere Cromwell, lead to a presidential order charging Noem and the Attorney General to investigate Krebs and provide "recommendations for appropriate remedial or preventative actions." Or, as the quote goes, "My dear Norfolk....This isn't Spain."

I find "lawfare" a fatuous term, no matter which political side is using it. Still, insofar as it hangs like a moral millstone around the neck of its boss, sinking him ever deeper into the muck, I think we can all agree: "Lawfare continues to hobble the Trump administration." 

Why Should You Even Have to Ask?

The following points are blindingly obvious, but I felt compelled to make them just the same.

The first and far less important one is that it seems perfectly cogent and morally acceptable to ask the question, “Can a federal court force the president to negotiate with a foreign leader to obtain return of an alien?” Or, to put it more fully, “Can a federal court order the president to ask a foreign leader to return an alien it has concededly removed in error?” It’s a perfectly legitimate legal question raising issues of judicial power and separation of powers. I suppose the only reason the point needs to be made is that the moral overhang is so powerful that one might be accused of a kind of fatal moral desiccation for even asking such a question, in the same way that one might be astonished by someone asking whether the American soldiers who liberated Buchenwald maintained proper unit discipline. Of course such an inquiry would miss the main point, and of course such an inquiry might well be made for morally desiccated, bad-faith, or even monstrous reasons. But the question is not illegitimate as such. It could be asked for purely academic reasons—to write a history, for example. It could even have some forward-looking value. Buchenwald was not the first or the last prison camp, and—provided, at least, that the United States prefers to liberate such places rather than to build them or lease space in them—it might be nice for planning purposes to know such things.   

The second is, again, obvious: It seems bizarre to ask the question above without asking, “Why on earth would it have to?” If the United States reaches an agreement with a dictatorial populist thug and part-time internet troll—hard to imagine us being well-positioned to do this, I know, but bear with me—and offers to pay several million dollars, plus (one imagines) other benefits such as improved relations, to rent space in that leader’s human-rights-violating maximum-security prison, and then by its own admission sends someone there in error, why on earth would a court have to ask it to make some effort to seek the return of that individual? (To say nothing of the unknown number of others it has also sent there in error but hasn’t gotten around to admitting to.) How, unless perchance there were a particularly important golf tournament, would it even have time to before finding out that the question had been mooted by the government’s own mitigating efforts?

One can understand that whether a court can order a president to engage in what our regime pretends, in high-flown language, is “sensitive foreign negotiations” is a genuine question. But when the United States realizes it has sent someone to a foreign prison camp-cum-American-storage-space-rental in violation of a court order, and knows that the sensitive negotiations consist of some lackey picking up a phone and exercising the same leverage he used the first time around, or at least trying and failing, the obvious prior question is: How does it not even try?

I suppose one could view this as a matter of “breaking norms.” But I prefer to think of the norm of attempting to correct your own mistakes without having to be asked as more of a fundamental question of morality and of honor. And not one that exists entirely outside of or irrelevantly to the Constitution. One reason courts are not faced with fixing every mistake made by executive actors is that executive actors often, as honorable officials will, attempt to clean up their own messes. The core values that lead them to see themselves as honor-bound in such circumstances to attempt to correct the mistake are the same ones that permit them to take oaths of office, to give some content to them, and to live up to them. To be willfully indifferent to the first is to be unworthy of and presumptively incapable of carrying out the second.

Of course it is often harder to undo a mistake than to make it in the first place, easier to destroy than to build--or to remedy. I take it that is one reason for things like due process, the separation of powers, and a system that requires law to be made by large legislative bodies rather than by one short-fingered individual. You can’t guarantee the return of a prisoner from a foreign prison camp, any more than you can resurrect ten trillion annihilated dollars. (I believe the current word for that kind of thing is “oopsie.”) That it doesn’t occur to an executive branch to try—or, worse, that it does occur to it—is, it seems to me, the more pressing question. Very pressing.

As I said, these are obvious points, so forgive me. Whatever the result in this case, all these things are obvious to the courts too. I’m more concerned at present with the enormity of the conduct. But I’ll note, also obviously, that this is one more occasion on which the Trump regime has said to the judicial branch, as loudly as possible, that its actions and justifications should be viewed with skepticism and with no presumption of good faith, legitimate motives, or the capacity for lawful, honest, or decent conduct. No one can reasonably expect judges, like other human beings, not to recognize and, implicitly or explicitly, respond to the extent to which the current executive branch—and, perhaps, its apologists—have become legally, mentally, and/or morally deranged.     

Behind Every Terrible Artist is a Foolish Patron, Tariffs Edition

It has been difficult this week, for those who are interested in at least attempting to get the contrary arguments on seemingly obvious points, to find any expert defenses of the Trump tariffs on economic policy grounds. This is unsurprising, since the economic policy is terrible and the experts agree that it's terrible. If you absolutely insist on finding "economists" who are willing to serve as apologists for Trump's single-person taxation frenzy, your options are highly limited. But you could consult Oren Cass and his team at American Compass. 

Out of curiosity about how it might come by its expertise in the area, I visited its website. The group, which describes its mission as "developing the conservative economic agenda," has a small team of "economists"--actually, "chief economist" Cass is the only one with "economist" in his job title, so I guess it's "chief" in the same way that I’m the chief law professor in my family--plus "policy directors," "policy advisors," and the usual add-ons. It is so fiercely devoted to its "economic agenda" mission that, on a team of twelve, it can boast a remarkable total of zero economics doctorates, zero master's degrees in economics, an MBA, and around two-ish undergraduate degrees in economics. That is...a surprising number, for a group which describes its own mission as developing an "economic agenda." I can understand an argument that economics isn't everything, which is basically the "a peat-burning barter economy is next to godliness" position that Trump's apologists are forced or even eager to take (albeit from comfortable perches and with a stock of claret laid in). But you'd think a group devoted to developing an economic agenda would occasionally hire a trained economist just by accident. (Even Cass, incidentally, had criticisms of the manner in which Trump has indulged his tariff obsession.)   

For well north of $2 million in grant money to support the team at American Compass over the last five years, including a $950,000 grant in May 2024, we may thank...the Hewlett Foundation, led until recently by former law school dean Larry Kramer--which, as Troy McClure would say, you may know from grants such as its ongoing seigneurial largesse to the Law & Political Economy Project. Yay team. 

One for (and by) Ethan: Of Good Faith and "I Love Beating George Washington"

At Jotwell today, I am very pleased to spotlight a recent paper by our own Ethan Leib. The paper, a book chapter, offers an introduction to the subject of "Good Faith in U.S. Constitutional Law." It is, I suggest, both very helpful and an instance of "exquisite lousy timing." The role of virtue, character, a "proper sense of honor," and fiduciary responsibility in making constitutionalism possible--and in making rights and the rule of law something more than a bunch of fancy paper obscuring the entrance to a sewer--is always worth examining, in any administration. It is especially urgent now. But it is also, perhaps, already too late, given that this regime, despite the volubility of some of its intelligentsia on the subject of virtue, not only has none but appears positively to reject the notion that someone who holds an office should seek to act in a way that is at all worthy of it. Some snippets:

Every era gets the constitutional scholarship it needs—after the fact....Given his recrudescence, to go for le mot juste, the study of the—bear with me—constitutional jurisprudence of Donald Trump presents an interesting case. What was too late the first time—a consideration of what American constitutional requires by way of character in its office-holders—might now become newly relevant. Or it might be too late once more: not only practically ineffectual, but also a pathetic plea for behavior that the wider culture now treats with a mixture of indifference and contempt. Nevertheless, there is new cause for this work. In his short but sweet contribution Good Faith in U.S. Constitutional Law, Ethan J. Leib presents a useful summation of one strain of this character-based constitutionalism: officials’ duty to act in good faith. Its conjunction with an administration in which good character is as plentiful as rainfall in the Atacama Desert is, we might say, an act of exquisite lousy timing....

[Leib's chapter] summarize[s] the ways in which good faith is “central to constitutional law, even as the apex Court seems only ambivalently committed to its ability to be useful in deciding cases.” As Leib notes, its centrality begins with the text itself. Just as marriage begins with public vows, so both Article VI and Article II of the Constitution mark the entry from private status to public office with a promise before witnesses: a binding oath to “support this Constitution.” The president is further bound to “faithfully execute” the office of president and the laws of the United States. Other portions of the text, such as the Emoluments Clause, forbid the kind of self-dealing that is an affront to fiduciary duty.

Here and elsewhere, the Constitution relies on the oath-taker’s understanding that any power he exercises stems from the proper execution of the office, not the unfettered will of the individual who occupies it. (“What are the highest places,” as a judge once put it, “but obligations of the greatest dewties?”) At the same time, by swearing, the oath-taker openly acknowledges that his private character and reputation have been fully yoked to his performance of his public duties. Or, as Robert Bolt’s Thomas More puts it, “When a man takes an oath, he’s holding his own self in his own hands like water; and if he opens his fingers then, he needn’t hope to find himself again.” Knowing that men are no angels, the Constitution’s crafters nonetheless envisioned officers who treated one’s conduct in office as a commitment of one’s honor—indeed, of one’s soul....

For Leib, the fact that courts are reluctant to inquire into officials’ good faith is understandable, given concerns about institutional competence; it’s simply another example of the ways in which courts’ “decision rules” often apply more clearly but also more narrowly than the underlying “conduct rules.”...Leib concludes that good faith remains a central conduct rule for officials—one of “the very foundations of constitutional government in the United States”—even if the judicial treatment of that rule involves “careful calibration.”

...[The timing of the chapter] both supports its arguments and raises questions about them, or about their efficacy. Leib’s summation of fiduciary constitutionalism... could not be more relevant right now. The current regime has pushed a more thorough-going unitary, centralized approach to the presidency than anyone in modern history, and joined those actions with a reckless rate of change and a slippery view of law and legal duty.

Under those circumstances, even a neutral or supportive observer of this president should be interested in the public duties, virtues, and commitments that are, as a matter of constitutional obligation, supposed to channel and restrain his actions. That person should be equally interested in how the oath, and other fiduciary aspects of office, are supposed to direct subordinates—from Elon Musk and Russell Vought all the way down to a lowly peon, like a Cabinet secretary—in the performance of their duties. One needn’t like or dislike the man or his policies to acknowledge that Trump’s approach to presidential administration demands attention to these questions, and to how they ultimately cash out in the courts.

Of course, one might be less supportive, one’s sense of reality not so purblind. One might see the administration for what it is. “What it is” isn’t incipient fascism, most likely. (Although this administration has shown an unmistakable eagerness to hire, hang out with, and champion fascists, along with Jew-haters, rapists, Blut-und-Boden freaks, and other thugs—and that’s just counting the Trumpian intelligentsia.) But this is certainly a personalist, patrimonialist, authoritarian administration, staffed mostly by the craven and the roguish—and all of it in the service, not of party or ideology, but of the whims, fads, resentments, corruption, and appetites of a walking id. The title of this jot is a quote from Trump himself, as he was delighting, Commodus-like, in Bill O’Reilly’s flattering lie that Trump is the greatest president in American history. In reality, Trump and his administration resemble Washington’s less than they do a semi-organized criminal enterprise, albeit with two key differences: In a well-run mob, the capos are able men who have guts, and the don is capable of occasional dignity, foresight, and good taste. (Historically speaking, the Mob was also much tougher on Russia.)

Leib’s introduction to fiduciary constitutionalism is especially valuable against this real-world backdrop. If nothing else, it provides the measure against which the current regime’s dizzying plunge away from honor and the rule of law can be evaluated. But Leib’s treatment does two things more. On the “conduct rules” side, it encourages us to think about the degree to which constitutionalism generally, and our Constitution specifically, not only assume but demand basic qualities of character and virtue. For all the usual talk of structures, incentives, guardrails, and the like, without those personal qualities all else is mere parchment barrier. The Constitution does not prevent officials from departing from the ordinary politics, policies, and practices we are accustomed to. But it does require something more than ordinary men and women—not only at the top, but also within positions of responsibility throughout the executive branch.

On the “decision rules” side, reading Leib’s piece in the current moment encourages us to think more about the courts’ increasing reluctance to think in terms of character, duty, or motive itself. The reasons for this reluctance are varied, and Leib does a good job of spelling them out in this context. But one wonders whether the courts’ “irregular support for motivational inquiries,” which Leib describes as stemming from nervousness about courts’ competence to judge such matters, does not also reflect those judges’ confident assumptions that the executive branch’s officials possess basic qualities of character and virtue.

Those assumptions rely in substantial part on the ordinary processes and customs that are in place and have been followed by both Republican and Democratic administrations. If those assumptions become plainly unwarranted, perhaps the courts need to adjust their approach to compensate. When the Court in Trump v. Hawaii refused to follow the tweets, it did so in the belief that rounds of litigation had forced the administration into something like a more normal process of interagency consultation, with concomitant amendments to the travel ban. There was some reason in this. What, then, should the justices do when it is clear that this round of the administration just is its tweets—that to strip it of its vulgarity and “hyperbole” is to miss the point entirely—and that the grown-ups who might conduct ordinary business with more than one eye on the law have been banished? The Supreme Court’s approach through the first Trump term was to nudge the administration back within the guardrails of ordinary process, while premising its grants of power on assumptions about the ordinary good faith of those who fill any given executive branch. The Justices are not morons. They know that those assumptions no longer hold. One would not be surprised to see the Court, at the point at which the “acoustic separation” becomes too vast, turn back to a more frequent and explicit use of motive inquiry. It certainly ought to.

We might finally ask whether these questions come too late. If it is, it will not be because of the extraordinary nature of this regime and its Dear Leader alone. It will also have much to do with the degree to which our very culture, both elite and popular, has simply dispensed with the very idea of character and virtue as central and necessary elements of individual and official conduct. The blame could be heaped on social media—and, indeed, one of the most striking aspects of the Trump regime is not that it lives on social media, but that it seeks to make the lies and vulgarity of social media normative offline as well as online: it sees politics as the continuation of Twitter by other means. The problem might be traced further back, to a hollowness at the heart of individualistic, thin versions of liberalism or neo-liberalism. And it might have to do with the extent to which those who reject liberalism, for the purported reason that it does not sufficiently foreground basic requirements of virtue, have instead filled the post-liberal space with paganism, hedonism, grifting, and der Wille zur Macht. Whatever the case, it may simply be that good-faith constitutionalism requires a vocabulary that we as a culture no longer possess. As I said: exquisite lousy timing.

Enjoy the jot--and read Ethan's chapter! I note that while some scholars who had written about this or similar concepts in public law seemed lamentably to observe something of a caesura on the topic from 2021 to 2025--something I hope they will remedy now by picking it up again, not neglecting questions about the last couple of years of the Biden presidency if and as better evidence becomes available--Ethan has maintained a steady interest come rain or deluge.   

 

"I Used to Go With the Wrench"

Mark Tushnet has a nice explanation for why he signed the Harvard Law professors' letter. I think there is an important gap in his account. It explains why he might feel a professional, vocational duty to speak out, but not why he would sign a group letter as opposed to engaging in some other form of communication. Perhaps Will Baude's measured, reasonable post on the Divided Argument blog fills that gap a little, although that depends on Mark's own views. (Divided Argument, which now includes some of the finest former Volokh Conspiracy bloggers, requires immediate bookmarking. I don't know their reasons for moving over there and quite agree with those reasons.)

I remain generally lukewarm about such letters, both because I believe their politics are often counter-effective and because I dislike signing on to other people's language. Nor do I see much point in a national push for such letters. (It doesn't much matter, to be sure, since I am locked into a half-convenient, half-humbling cycle, in which I rarely sign such letters and am rarely asked to.) But I do think the closing passage of Mark's post is entirely right:

Rattling around in my head was something from my experience during the Vietnam War era. I won’t go into all the details, but participating in antiwar protests I learned of a poem by James Russell Lowell, written in 1847 to protest the Mexican-American War and then converted into a hymn, whose opening lines are, “Once to every man and nation comes the moment to decide/In the strife of Truth with Falsehood, for the good or evil side.” You live long enough, and it happens more than once, unfortunately.

Of course opinions will vary about when this language applies. I think political parties, at least, invoke variants of this sort of language all too often. (Romney?!?) Rightly or wrongly, I would not have found it as applicable during the first Trump term, despite my dislike for his policies and rhetoric in those years and despite some clear descents in that time into corrupt personalist rule. (See, e.g., Ukraine, Phone call to.) The difference might be a matter of error on my part. Or, as I would prefer to think, it had to do with the presence of a greater number of administration guardrails. Those guardrails included Republican officials within the executive branch who, when necessary, fulfilled their oath-given duties, and honored their offices, by ignoring or subverting their boss's infantile "desires." Those officials believed in the sorts of norms and processes that allow for ordinary politics, in which vehement disagreement over policy does not demand the kinds of statements that are called for in a more genuinely or incipiently authoritarian regime.

Of course the guardrails have been cast off from the Boss Baby's crib, the family cash registers are ringing, agencies and the DOJ have signed on to exact revenge for personal slights, and bizarre and arbitrary action reigns. So, yes, it is one of those times.

But I think there is another excellent bit of literature one might call to mind for our current moment. It's a passage of dialogue from the sentimental but well-written movie Good Will Hunting. 

Will: He used to just put a belt, a stick, and a wrench on the kitchen table and say, “Choose.”
Sean: Well, I gotta go with the belt there, Vanna.
Will: I used to go with the wrench.
Sean: Why?
Will: Cause fuck him, that’s why.

Of course the application of the quote is imperfect, although it does have a certain zing that Lowell lacks. The most important reason it's imperfect is that people like law professors are, as a discrete category, at present mostly safe from harm, aside from the general destruction of the economy, the possible loss of their jobs or defunding of universities, and so on, in addition to the lashes they might suffer personally on some other basis. The damage from such things is immense but mostly collateral. Speaking out for us, as lawyers or citizens, may be an indefeasible, urgent moral duty but is also, for now, a luxury. We certainly suffer no reputational harm within our own particular community by doing so.

But in a country that makes deals with vicious autocrats, bribing them with public money to rent space in torture camps, sends the "wrong" people there through "administrative error," and then invites the courts to mind their own business--in a brief that treats the question whether or not it has rushed to correct its error as an incidental item not worth mentioning--that luxury status is nothing to be proud of. (I imagine that natural law and "unitary and discernible" truth have something to say about such conduct. And I imagine the answer is not a shrug of the shoulders.) Of course we have a duty to speak up against this regime. And the more often, and casually, the regime employs state power for its cheap, ugly, punitive ends, the stronger that duty is. Because...well, read the quote.      

Defenders of "Plundering, Harassing, Misery, and Agony"

Double Aspect is consistently an interesting and eloquent blog, which I have praised before and think deserves greater attention. (Its focus is on "Canadian public law and other exciting things," so I'm not sure how it wouldn't receive it.) I don't agree with everything I read there, but that's hardly a disqualification. I often learn from it. 

Sitting at its top currently is a lovely post by Leonid Sirota titled "Vermeule and Verres." I won't quote the whole thing; you can click the link easily enough. The subtitle gives the gist clearly enough: "The 'common good constitutionalism' motte-and-bailey revisited, and why due process matters to the moderns as well as the ancients." One should be especially grateful for the passage from Cicero, never more important as a legal source than now. 

The post was put up on March 24--splendid, and splendidly disinterested, timing in light of the weekend's exchange of faculty letters to the students of Harvard Law School, a group that I dare say seems to send and receive entirely too many letters. I'm not much of a letter-signer myself, but given my recent posts can hardly object overmuch to public statements. I admit that my primary thought about the letter signed by some 90 members of the faculty is that, although I agree with its sentiments, I do always worry that the primary effect of a letter signed by 90 members of the Harvard Law faculty will be to influence thousands of minds--regrettably, in the opposite direction. It would be more effective, I think, although admittedly more time-consuming, to quietly take 90 Republican members of Congress or 90 mid-level executive branch appointees out to dinner, to express those concerns one on one. (And to hear those concerns shared in return, based on everything those members and officials have been saying to each other everywhere but on the record.) But clearly I am in no position to deny the proposition that when faced with gross corruption, lawlessness, disregard for the rule of law, pointless cruelty, and evil, one must sometimes opt to speak rather than take a more cunning or prudent approach.

As for the Vermeule letter, aside from things that fall plainly outside the realm of soundness--to describe Rudy Giuliani as having been disbarred "for [his] representation of President Trump," and not for his having been grossly irresponsible and at times perjurious in that representation, is to do grievous violence to a perfectly innocent preposition like "for"--it seems to me only that the letter is incomplete. It cannot be evaluated on its own. To properly judge its claims and its meaning, it must be read alongside this article. Indeed, with respect--and this does seem to me to be the most and perhaps the only genuinely respectful position one can take as a reader--it seems to me that no piece of writing he has done in the past seven years, his book included, can properly be read or evaluated unless it is read alongside, and as if incorporated into, the Integration From Within article. If someone takes on the labor of a decade-long project of writing esoteric literature, and is generous enough to hand out the key for deciphering it, the least the rest of us can do is use it. 

The Trump-Vance Theory of Presidentialism in Seven Words

As, I suppose, the opposite of a palate-cleanser--more a moment of overwhelming, emetic dysgeusia--consider this, possibly the epitome of le mot juste. It comes from Vance's stunt trip to Greenland, the current object of Trumpian cupidity. Attempting to justify the ongoing inanity, Vance said: "We can't just ignore the president's desires." 

There you have it. Not only is it as good a one-sentence description of Trump's id-driven vision of presidentialism as we are likely to see on this earth; it also superbly captures the faux-manly aggressive servility that is this regime's vision of the vice presidency.

Two other pithy phrases occur to me. One is from John Locke: "The discipline of desire is the background of character." The other is from Scripture: "Jesus wept." 

The Week in Corruption, Plus Two Cheers for "Corporate Media"

Another free speech post, albeit somewhat tangentially so, following on Howard's post below. (Although it's clear to me that we're living in two different bubbles. I don't see a refusal of "many," if that word is to have some value, to recognize this regime's hostility to free speech. I don't understand him to be referring to hoi polloi, to the far right, or to Trump cultists and apologists. Most others I see--most certainly including conservative writers, who are proving the most eloquent effective of Trump's critics, far better than either mainstream or lefty elected Democrats--recognize and criticize these attacks. If all he means is that despite widespread recognition of the regime's attack on free speech and press, there are some who persist, out of outrage about Hamas or anti-Semitism or on-campus behavior, in supporting the anti-speech attacks and offering weak justifications for them, well, yes: that's obviously true.)

This week has been an unusually busy one for lawlessness, corruption, incompetence, and cruelty. Just how indefensibly bad has it been? I wrote earlier this week, "The best way...to discern the views of a Trump apologist and/or office-seeker among the nominal intelligentsia is to note all the things they don't write about. If you are looking for the dregs and remnants of principle, decency, and a vestigial sense of shame among the Richard Riches of our time, look for the things they most conspicuously ignore." Some of the most shameless and logorrheic Trump apologists have been remarkably quiet this week. So it's that bad. 

In addition to my work obligations, I find I am pushed further behind in noting the regime's evils by the sheer pace of wreckage, trolling, and contempt for law, truth, and decency. And the hits keep coming! (Still on tap: something on the Trump DOJ speech, which deserves to remembered alongside the greatest hits of Nuremberg; something on the Trumpian logic of deporting Canadian conservatives; and something on the doctrines the Supreme Court will need to revive to address the regime's dishonesty and vengefulness. The bad news is the stories that motivated those pending posts are fading further into the past. The badder news is that new instances of the same things keep occurring.)

Here's one salient new story. It involves something that has been going on since the inauguration but whose pace picked up remarkably this week: Donald Trump--he ought to legally change his name to "Danegeld Trump"--has been pardoning convictions or commuting sentences of financial criminals frequently enough to exhaust the most tireless autopen. When he's not doing that, he has been ordering his law enforcement officials corruptly to drop charges and investigations. Things got off to a rousing start with the pause of the civil fraud case against Justin Sun; you may know him from such canny investments as the $75 million he put into the Trumpcoin grift. That one got a good deal of attention, but was just the tip of the iceberg. This week, Trump offered a new flurry of announcements. In keeping with the regime's preferred style, in which brazenness and contempt for reason are not accidental but deliberate, he did so not quietly but with full publicity. This week's list includes a gallery of rogues: former Nikola CEO Trevor Milton, Ozy Media founder Carlos Watson, three co-founders and a high-level employee of BitMEX, and--a fitting tribute to Trump's status as Vulgarian-in-Chief--financial wunderkind "Hawk Tuah Girl." 

It will not surprise you that Milton, at least, has given generously to the Trump campaign and to the MAHA Alliance, a PAC that champions the policies of our nation's new leading cause of illness, RFK Jr. But corruption is the damnedest thing. It's not always done in a clear, transparent, easy-to-detect way. It's the kind of thing that needs dedicated resources--money, skilled and experienced detectives, and time--to uncover, and equally good resources to tell people about it. And it helps if the research and publicity are carried out by reasonably trustworthy people. It's not a job for David Brock or the DNC or a lone, partisan Substacker.

This is why, for all their faults, and for all the trimming of sails that will continue to occur as long as people like Brendan Carr dishonor their offices, I can't go along with popular, cliched, inflated criticisms of "corporate and billionaire-owned" media and paeans to "independent" media. It is bad that Jeff Bezos crippled his editorial page, although it's also fully his right. (In any event, I found that far less worrisome than the outright payment of protection money via Amazon and its Melania "documentary" deal.) But editorial pages are, in their very essence, basically useless. The primary alternative to the "corporate media" turns out not to involve real journalism at all. Instead, it consists of a flood of freestanding op-eds, run by non-"corporate" individuals or entities subject to their own capture problems--in their case, capture by a subscriber-based financial model and the orthodoxy and crowd-pleasing it demands. Like a Winger album, it's all very loud but pointless.

We are drowning in "opinion and cultural commentary." We don't need it. What we need is financial reporters, investigative reporters, beat reporters, data-set reporters, and every other kind of reporter (and editor!)--preferably boring as hell, detailed as hell, dogged as hell, largely indifferent to their readers, and at least somewhat freed from the pressures of the hot take and the social-media-paced publication schedule. That costs real money. It's why the corporate-owned Wall Street Journal has become utterly indispensable for those who want to follow the crimes and follies of the Trump regime in a way that the Free Press or the Contrarian could never be. If you hope to discover going forward whether money has changed hands in this flurry of financial-crime anti-law-enforcement, and how much, and how, and (God help us) what the nature of the Hawk Tuah Girl's quid pro quo was, find a newspaper with a large company or a billionaire behind it; scrutinize its owner constantly; but thank the good Lord that it still exists. 

Alternate Headline: Law Scholars Launch Actual, Normal, Non-Silly, Scholarly Journal

Noted with interest: "a number of law professors from top schools are working together to start a new publication—the Independent Law Journal. All articles published in the Journal will be peer-approved by a faculty board, but student staff will still handle most of the Journal's operations and will collaborate with faculty in initial article selection....[T]he ILJ is...a non-partisan [journal] committed to publishing equally from left, right, and center. Nobody benefits from groupthink, and the Journal will work hard to prevent itself from becoming an echo chamber."

Kudos. Law faculty should take notice and steer their submissions thusward. And hiring and P&T committees, barring the qualitative review they are obliged to undertake, should presumptively view publication in such a journal as a stronger mark of quality than publication in a student-run journal, regardless of the prestige or ostensible selectivity of the latter. A few things to note:

1) I trust that the "from top schools" language is mostly for purposes of identification. It's not a bad thing,of course! But it's also not a necessity as such (nor are all the leading scholars at the top law schools), and a demand for "top law school" professorial involvement shouldn't be the bottleneck that holds up an increase in the number of peer-reviewed professional legal academic journals. 

2) Of course students should handle most of the operations and of course they will, in doing so, pick up the skills that law review in its usual current form is supposed to teach (although its real value to students likes mostly in its proxy function for employers, of course). But I hope the journal will offer further detail about student involvement in "initial article selection." If that means going through the slush pile with some easily applied criteria in hand, it's reasonable. If it means something more, the editors ought to explain further.   

3) One assumes, given its ambition to "foster high-quality publishing and free and robust debate in legal academia," that the ILJ will avoid like the plague some of the bad practices that have taken a foothold among student-run law journals: e.g., "whole person review," mechanical obsessions with "firstness," editor- and volume-specific mission statements or secret selection criteria, anonymity that isn't, peer review processes that consist of an editorial board soliciting and ignoring peer reviews, and so on. 

4) It's good that the journal doesn't want to be an echo chamber, but perhaps less good that it is committed to "publishing equally from left, right, and center." It should not let the tail wag the dog. For the most part, it should simply evaluate the quality of submissions and publish what is best, while watching the outcomes and running, as it were, diagnostics to make sure that skews in the results are not the result of bias. 

5) I would cabin that point a little by suggesting that law review editors, despite our living in an age in which everything is seen as part of a larger database instead of as a tangible, discrete object in itself, ought always to think about the shape of individual issues. They should select and organize the pieces they select for some degree of variety and readability for each issue, complete with what magazine editors call a "front of the book" and a "back of the book." The desire to have actual journal issues that are a pleasure to behold and to read would itself contribute to the desire for greater attention to political and other forms of diversity. That would include subject diversity--more private law, etc. (it goes without saying that there should be more admiralty law pieces)--and diversity of length and format.

6) In line with that, and because of simple need, I hope the editors will make special efforts to solicit, and give extra weight to, short submissions--under 30 pages, say, of the sort that Cass Sunstein has been churning out of late--as well as essays and, especially, book reviews. We always need more book reviews and review essays.  

7) What the editors are proposing is, of course, just a normal scholarly journal, in line with the standards of the academic calling. Other than journals that run only student pieces, all law journals should be faculty-run and involve peer review of anonymous submissions. As legions of academics have pointed out ad nauseam. 

Illustratively Pointless Lies: One Millionth of a Series

I still have not gotten around to the post I promised last time, about why the Trump regime should--at least by its lights--start forcibly deporting the politically conservative Canadians hiding among us. For one thing, Donald Trump prefers dealing with thugs over democracies, so I assume his focus will remain with his pals in Moscow and San Salvador. For another, every morning brings three fresh hells to absorb. (The best way, incidentally, to discern the views of a Trump apologist and/or office-seeker among the nominal intelligentsia is to note all the things they don't write about. If you are looking for the dregs and remnants of principle, decency, and a vestigial sense of shame among the Richard Riches of our time, look for the things they most conspicuously ignore.) 

Today's item is relatively minor but quite illustrative. It has to do with Trump's ruination of the Kennedy Center, a hobby that nicely combines his pathologically childish ego with his bred-in-the-bone vulgarity. Speaking to the clown's-car-full of board members he appointed, Trump boasted of his childhood aptitude for music. It may be so. But it wasn't enough. Asked to comment later, his communications director, Steven Cheung, had to gild the lily. Cheung said that the Don "is a virtuoso and his musical choices represent a brilliant palette of vibrant colors when others often paint in pale pastels." 

Of course this is a lie, and of course it's a trivial lie. That is rather the point. It's the very triviality of the lie that fascinates and repels me. In his eagerness to be liked by anyone he spoke to, Joe Biden famously, frequently exaggerated and lied about his own biography. Donald Trump, of course, lies about everything, but most of all he lies about himself--not to be liked or to find points of sympathy with others, but to exalt himself. (I would say he is the spitting image of Commodus, but Commodus came from a family of warriors and Trump...does not.) What is new here, and entirely in keeping with the norms and, no doubt, job-keeping imperatives of the regime, is that in more or less normal past administrations, press secretaries' sad role in such cases would be to ignore or make excuses for a presidential lie. (One could have set a watch by the last administration's invocations of the childhood stutter.) In this administration, the instinctive response for someone like Cheung is to lie more. It is to lie more fulsomely, more floridly, more brazenly, more pointlessly, more eagerly--after all, this was a thoroughly unnecessary, volunteered lie--and with an active indifference to the concept of the truth and an equally active contempt for the very idea of honesty.

A popular, although I think inaccurate, adage about the actions of the first Trump administration and the present regime is that "the cruelty is the point." (I would have thought that the ego was the point, and that ill-gotten gains would nose out cruelty as a motivation.) If I had to come up with a different decoder-ring for this regime, it would be online culture. The dominant attitude of the Trumpian political culture is the degraded-Clausewitzian view that politics is the continuation of Twitter by other means.

If we were to imagine social attitudes toward the online world over time, we might start with the early view, in which the online world was either seen as amusing or viewed with a utopian spirit. Then we might proceed to a period in which it was agreed that online culture is brutish, ugly, mean, and ignorant, but this was minimized by viewing it as a separate reality, something not "in real life." Yes, one might say, people are awful online; but that's just online, not the real world. Among finer people with more self-restraint than I have, it was responded to more stringently, by choosing to live as much as possible away from devices.

The Trump regime view, as far as I can see--and, looking as far as I can see, it pervades every aspect of the regime--is that the ugliness, dishonesty, self-centeredness, and mean-spiritedness of online culture is normative. It ought to be that way; it ought to be how people live and speak. And not just online. Far from being a separate and distinct thing, its ugliness, incoherence, illiteracy, and casual disregard for truth should be normative in every aspect of life.

The grift, the scam, the indifferent lie and the deliberate one, the vulgarity, the love of bullshit, the online distance from reality that makes getting "likes" from Putin or some fraudulent. on-the-make pseudo-scientist more palpable and important than the deaths of Ukrainian children or the spread of tuberculosis: These are baked into everything that Trump and his administration do. This is what the world looks like to them and what they want the world to look like. Only Cheung's relative literacy distinguishes his slavish lie from the hundred other lies and crudities that his boss and his boss's underlings utter every day. (For illiteracy, we must go straight to the top, or to people like the interim U.S. Attorney for D.C., whose innate mediocrity and lickspittle nature lead him perforce to parrot his boss's own mangling of the English language.) 

Of course, the online disease is not unique to Trump, to his inferiors, and to his cult. We live in a rude, vulgar, degraded culture and online-ness is its name. In politics, virtually every misstep and gross error of the last administration was connected to Biden's decision (or, perhaps more accurately, the decision of that administration's active decision-makers) to follow the views of those individuals and groups whose goals, focus, and rhetoric derived heavily from online debate. What was the tenor of the campus movement of the last year, and of a few years ago, if not Twitter made manifest? Having surrendered or never even entertained the notion of governing, every rising star in the GOP on Capitol Hill for the past several years, and a good many off the Hill--judges certainly included--has been someone who either lives only online or lives only as if online. Much of journalism and all of journalistic success have become subsidiaries of social media. This is our world, alas. We are a nation of trolls.  

But the Trump regime is not only the natural consequence and culmination of this culture; it is its apotheosis. And unlike normal politics or culture, it comes to us without the sense of hypocrisy, embarrassment, and shame that remind us to hope for something more from ourselves and others and to occasionally curb our worst tendencies. The regime wants this culture. It delights in it. It thinks people who expect better and hope for more are, like fallen soldiers, "suckers" and "losers." Its apologists think trolling is fun, that presidents who troll are most fun of all, and that "he's just trolling" is an actual excuse for presidential misconduct, lying, and hostility to democratic allies and one's own citizens. Their efforts to defend the indefensible inevitably resort to phrases like "stripped of the hyperbole" or "despite the crassness." But even more than cruelty, even more than greed, much more than partisanship, and leagues beyond anything like policy, the hyperbole and crassness are the point, are the whole thing. To strip Trump, or underlings like Cheung, of hyperbole, boasting, lies, and vulgarity is to misstate and mistake everything they do; it is to strip them past imperial nakedness and into non-existence.

Cheung's analingual lie about Trump's musical genius, trivial as it is, is as good an indication of the heart of this regime as anything else, in large measure because it is so trivial. Take a press spokesman who views lying as a regrettable and generally counter-productive necessity of the job and replace him with one who lies for the lulz. Take a more or less decent--or even gravely flawed--culture, one that is occasionally richly conservative and tradition-laden, put a landmine under it, and replace it with "Cats" and "the home-decorating taste of a third-world dictator." Take the idea that politics is the art of attempting to find a stable, predictable, and, if one is lucky, boring approach to governing social and economic relations, leaving some open space for private life, and replace it with randomness, whim, fealty, corruption, bullying, and naked vengeance. Take a dull but incrementally successful effort to make government more efficient and replace it with a Ketamine rush. Take the worst of online culture--the vulgarity, ignorance, and dishonesty, the crank amateurishness and mob rule, the ceaseless, more-than-half-sincere trolling, the "nothingburger defense" and the misquote of Lincoln, the active or actively tolerated Jew-hating and misogyny and racism and idolatrous, corrupted religion--and make it your normative vision of America. That is as good a heuristic as I can imagine for predicting what the Trump regime will do later today, tomorrow, next week, and every other chance it gets. Not because it lacks wisdom, decency, judgment, taste, and imagination. (Although it does.) But because that is its fundamental understanding of the world.        

 

The Trump Regime Continues its Retrospective Celebration of 1798

I'm working on a longer post, but may I just note the news that the Trump regime is apparently preparing to invoke the Alien Enemies Act of 1798 in service of swifter and more draconian deportation of illegal immigrants, relying on tendentious assertions about "invasion." This cannot be wholly a surprise. And I will not find it a great surprise if and when the regime closes the loop and relies on the whole armament of the Alien and Sedition Acts and their descendants, to punish speech as well as status and to attack citizens as well as non-citizens. I wrote a week or two ago about Ed Warren, the gormless still-Interim U.S. Attorney for the District of Columbia, that his threats against members of Congress and others for engaging in constitutionally protected speech should not be treated merely as a gross misreading of true threat doctrine. Rather, they should be seen as

a revival--impressively, in the absence of anything like a war or emergency--of circa-1917 views on incitement. "The Alien and Sedition Laws constituted one of our sorriest chapters, and I had thought we had done with them forever." I rarely feel the need to quote Justice Douglas, but, I guess, never say never again.

The regime can be relied upon to supply its own "emergency," of course. And a properly cowed and subjugated Secretary of State can be relied upon to offer whatever verbal formula is required.

If there is any comfort to be taken, I find it in two or three things: 1) The regime can be counted on to offer five or six justifications for its actions on any given day, even if they contradict each other and render the justifications incoherent and untrustworthy, and to careen wildly between enforcement and non-enforcement. 2) The more lawyers it fires, or who resign after being told to make bad or improper arguments that would violate their oaths, consciences, or law licenses, the worse things will go for it in the courts.* Opting for "loyalty" over competence and integrity is a costly choice. 3) The more it does, the more it says, the more pretextual or inconsistent or incoherent its arguments become, the more likely it is that at some point the courts--including the Supreme Court--will rethink any general presumption of deference to the executive branch, and reconsider any general or trending reluctance to scrutinize and second-guess the executive's motives, in both separation of powers cases and rights cases.

Law should not be remade for every new administration, and there are good general reasons for judicial deference to the political branches. But I'm reminded of a quote from Harry Kalven: "The Court thus has a hybrid role; and the arresting thing is that were its role to be purified in either direction--by having it become more simply a court and nothing more, or by having it become, bluntly, a political agency and nothing more--it would lose its power and its purpose. The special burden of the Court...is to exercise great political powers while still acting like a court, or if we prefer, to exercise judicial powers over a wide domain while remaining concerned, realistic, and alert as to the political significance of what it is doing." Even as a highly judicial body, the Court is not obliged to remain blind to the nature of this regime and its approach to the executive branch--both in its organization and in its exercise of power. Its reluctance to look behind presidential actions depended on its assumption of the existence of an "impersonal, thoroughly institutional presidency," sufficiently bureaucratized and staffed by capable individuals who provide internal constraints that its actions and good faith could be given some presumptive credence. But the Court exists in a dynamic relationship with the presidency and Congress. The faster, harder, and further the regime runs from a professionalized institutional model, the more likely it will be that the Court adjusts its assumptions and presumptions accordingly.* As it should. 

* Perhaps, in thinking about the legal presumptions of good faith that should or shouldn't apply and the necessity for a hard judicial second look at motives, the Justices and lower court judges will keep in mind the intersection between Trump's desire for an executive branch staffed only by personal loyalists and the blindly obedient, shorn of more independent-minded oath-keepers, and Elon Musk's typically off-putting vision of just who carries out historical atrocities, given that carrying out orders without questioning them appears to be exactly what this presidency wants from its servants:

 

Cowardice is the Through-Line

I cannot agree with something that Howard writes below. Among my extraordinary range of talents is the ability to walk and chew gum at the same time, while recognizing that of the two walking is probably more important. (It depends on the flavor of the gum.) So I'm not sure I get his point about "no one noticing" the enormous chilling effect on speech this administration is having "because people have been screaming about woke college students for so long."

For one thing: People notice! Most certainly including the same people Howard seems to suggest are benighted. They are fully capable of engaging in some version of "screaming about woke college students" while also believing--and saying--that the the use of state power generally is more worrisome than the threat of some moron in a North Face balaclava shouting "Go back to Poland" or blocking a public thoroughfare. Indeed, even in the interregnum between the first Trump administration and the present Trump kakistocracy, some individuals who were concerned about unhealthy exercises of private and mob power in public discourse not only charged that Donald Trump and other "forces of illiberalism" pose "a real threat to democracy," but warned that extreme or illiberal tactics on the part of those "woke college students" would be easily exploited by "right-wing demagogues." (Not that it took a genius to predict this. But then, it hardly took a genius to work harder to forestall it. And despite the obviousness of the point, any number of people, some of them college students, along with one or two candidates for president, spent most of either or both of 2020 and 2024 either not seeing it, or demonstrating by word and deed that they didn't care.)   

The same people are not only capable of believing that abuses of state power can be and generally are worse than abuses of private power. They are also capable of believing, and saying, that the particular uses this regime is making of state power are more worrisome than the average speech-chilling abuse of state power by the average Democratic or Republican administration, because they are more widespread, more lawless, more corrupt, more political, administered by more servile and incompetent hacks, less interested in paying lip service to existing law, and so on. It's not a question of "real" and, one supposes, "fake" chilling effects, but of bad and bad-plus-dangerous. It is possible to believe that both private actions and state actions can damage public discourse, but that state action doing so is more worrisome. Indeed, unless one wants to use state power to regulate those private actions, "screaming" about private behavior that chills speech or distorts discourse is precisely what one is supposed to do; in the case of state action, one screams--but one also sues and votes and lobbies.   

With respect to the universities, there is one sense in which the two unequal things--the use of "woke student" power and the corrupt exercises of state power--are  connected: the cowardice of universities in the face of both. Despite the many university administrators who did in fact support or give a pass to illiberal conduct for ideological reasons, I tend to believe that at the very top, the determining factor was cowardice far more than ideology. Universities treaded too lightly too long in the face of frankly illiberal conduct, often unlawful and generally disruptive of universities' ability to carry out their core missions, not because they were all in for Hamas or whatever the cause of the moment was (and the cause was more sympathetic in 2020), nor because they were trying to bend over backwards to protect First Amendment rights. Rather, they did it because universities are corporate enterprises that deal with both internal forces and external competition. They generally prefer not to rock the boat. They worried about blowback from faculty and other on-campus constituencies, and about alienating a small but select slice of the current or prospective student body, in a market that is always competing for students, rankings, and reputation. Privately, or so my experience suggests, university officials could be scathing about the student organizers they were dealing with, as well as those off campus who often used them as stalking horses. But they worried that any firm early steps would just lead to escalation. And they worried too about the calls and headlines they would get if they started suspending or expelling students, not to mention the ones they would get if--as is sometimes fully consistent with a university's duty, especially when some of the individuals impeding the university's operations are non-students and others are students who mask themselves to avoid being identified and disciplined --they called in the police to make arrests.

They were right to be nervous. Students wreaked havoc when their fellows were expelled. Students and faculty complained when students who were disciplined for disrupting university events realized that multiple suspensions might actually affect their visa status. Being students and faculty, they complained about everything. And although I lack sympathy for the students, one can see why they were surprised. Having first timorously underenforced their own rules, both in 2020 and 2024, the universities, after coming under pressure from various external forces including Congress, ramped up enforcement drastically and sometimes unevenly in a very short time. From my perspective, both the laxity and, when it finally came, the more draconian enforcement were equally motivated by fear. One understands that large institutions should act prudently. But to call all this "prudence" is an undue compliment. 

It thus can't be surprising that the universities are now offering statements in response to the current regime's law-adjacent crackdown that are milquetoast at best and at worst servile. (Servility, the status of a mere "subject," and "ritual self-abasement" being the things this regime desires above everything but money, from its Manchurian Cabinet all the way down to we poor suckers who just live here.) It certainly helps that the regime will punish universities without any clear goals, limits, instructions, guidelines, or guardrails, and that it is more than willing to take revenge on anyone who questions it. And it helps that the universities, along with every other institution in American life, have come to rely on the infusion of massive amounts of federal money and taken for granted the significant strings that are attached. It's not true that Columbia doesn't care about civil liberties. But, like other universities, it cares even more about being decimated. 

Beyond that, though, one important reason why universities have offered a cowardly response is that they have been trained for it. A university that has spent years afraid to utter simple, fully free-speech-respecting phrases like "pack up your stuff after 5 p.m.; you're not sleeping on the lawn" or "stop occupying this office or I'm calling the cops"--both things it should be saying as a matter of course--is hardly going to be habituated to telling a vindictive, force-wielding, semi-arbitrary political/law enforcement regime to go to hell, or that its job is to maintain order on campus, not to get rid of people with lousy ideas.

For Howard, the current moment demonstrates the folly of ever having treated private threats to a well-functioning free speech regime as serious. To me, it demonstrates that institutions that fall out of the habit of standing up for themselves in response to smaller problems are unlikely to find the backbone to deal with graver ones. 

 

They're More Than Just Hoops or They're Nothing at All

David Bernstein writes of the administration's apparent decision to cancel $400 million in federal grants to Columbia University, "I don't know whether this is lawful, or whether federal law requires hoops to be jumped through before such sanctions can be levied," but does not think arguments about the government's actions are usefully conducted by minimizing or denying any problem with antisemitism on that campus. That sounds right to me. But I am very concerned about those "hoops!" David does not say otherwise, to be sure. (Indeed, this post has less to do with any agreement or disagreement with him, and more to do with the fact that his post encouraged me to write out my own thoughts.) I just think it deserves much more emphasis. 

The current regime, unfortunately, seems to mistake loudness, terminal-online-ness, and never-shutting-up-ness for actual transparency. In the case of these cancellations, it has at least provided a press release trumpeting its action. The press release contains fairly standard-issue pomp. If anything, it is relatively mild by this regime's standards. Unsurprisingly, the RFK Jr. quotes in the general press release of a few days ago are closer to the regime's usual rhetorical pitch. I might note that although RFK is right to liken anti-semitism to "history's most deadly plagues," it does not reassure me to think that the administration has sent RFK Jr., of all people, to address any sort of "plague." Dealing with plagues is not really his strong suit--regrettably, given that for some reason he is the HHS secretary. I'm surprised he didn't recommend that Columbia try Vitamin A and cod liver oil. I am not surprised, given his involvement, that one of the grants allegedly identified for cancellation is "related to the possible development of a malaria vaccine." That does seem on-brand for Kennedy. Why the HHS secretary should be involved in oversight of campus speech and funding issues in the first place is yet another question. In any event, neither press release offers much by way of directly useful information. 

The press release announcing the cancellations does not specify the grants being cancelled, the basis for cancelling those grants in particular, the statutory or contractual basis for doing so, or anything else of real use. Nor does it link to any documents doing so. The executive order that launched the current enterprise provides no further useful detail on this point either. One expects reasonably fatuous generalities from any administration. But the lack of detail is, I venture to say, of special concern in a non-grown-up administration that, even when it does the right thing (as it sometimes does), does it erratically and is fueled by ressentiment, bile, petty ambition, and Twitter. (But I repeat myself, as the phrase goes.)

You may assume for present purposes that I think Columbia, among other schools, has a real problem with anti-semitism and an even clearer problem of failing to enforce basic disciplinary rules on campus. That still does not answer some important questions--"hoops," if you like. Was yesterday's action the result of anything Columbia has failed to do in the last week or month--or just something the regime was going to do anyway? Was the pathetic behavior of a Barnard administrator last week a contributing factor, or just a nice news hook for the regime, given its thoroughly online mentality? Does the administration have anything like a clear idea of what constitutes an "illegal protest" as opposed to an offensive but protected one? (It has some experience with "illegal protests," to be sure, but not of the confidence-building variety.) The administration has named other universities as targets of attention. Were they chosen for legitimate or illegitimate reasons? Will they be penalized similarly, and regardless of what they actually do? The press release certainly suggests the answer is yes. For any stage of this administration's actions--selecting universities to investigate, deciding what questions to ask and what university rules and actions to review, deciding what grants to cancel, deciding what universities should be doing, deciding whether or when grants should be resumed--are there any clear, rational criteria that respect both existing laws and regulations and the Constitution itself? Or are this administration's enforcement decisions, or at least those not tied to donors, basically a Magic 8 Ball with a cudgel and a loudmouth attached to it? 

Should those of us who are disturbed by anti-semitism on or off campus be encouraged by the fact that this literally constitutes "action?" Or should we instead (or also) be disturbed by the fact that--as with tariffs, the Russian invasion of Ukraine, prosecution of public corruption, crypto and securities law enforcement, the treatment of law firms, and so on ad nauseam--the "action" in question is not targeted to any clearly voiced goals or policies, let alone clearly voiced positions on the limits of or constraints on those policies, and can seemingly be wielded and withdrawn on a whim? This approach of course lends itself on the one hand to arbitrary and purely political punishment (or the withholding of punishment), serving goals that are at best purely partisan and at worst involve petty personal revenge as well as gross corruption. On the other hand, it lends itself to the risk that any actual commitments to addressing anti-semitism will be subject to the vagaries of individuals with infantile attention spans and an abiding need to be flattered and appeased (and to appease in turn).

In a regime with this particular management style, I can think of only one person to ask for answers to any of these questions. Unfortunately, that person has a lousy reputation for honesty or consistency in word and deed. 

There are of course many people who revile anti-semitism, and believe that universities ought to consistently maintain and enforce their own rules for functioning campuses, even where that involves calling in the police and/or expelling students, and who believe in due process, and believe that issues worth caring about--like anti-semitism, like campus speech, like funding for research--should be dealt with through sound and consistent policy and enforcement decisions. Those of us who think all of these are important may well doubt, under such circumstances, that any of these things will be addressed in a serious, consistent, intelligent, meaningful way. That's a problem precisely because anti-semitism is so prevalent in this society, and demands to be addressed--lawfully, but seriously. If these kinds of hateful beliefs are not addressed early, we run the risk that anti-semites, those who champion them, and those with virtually indistinguishable views from anti-semites will leave campus and end up in positions of responsibility in the Pentagon press office, the Justice Department and Homeland Security, the Treasury Secretary's plane, the State Department, and elsewhere. No decent person can excuse that. 

More of a Bemused Grunt

I'm concerned that replying to some things does more of a disservice to public discourse than anything else. Still, I'll bite to this extent: I have heard, and voiced, many reasons why a Supreme Court Justice, or any other judge or official, might want to step down from office. Age is one, has been particularly relevant for the last three presidential terms including this one and for some time on the Supreme Court, and remains an understudied aspect of contemporary American constitutional law and politics. Dishonor is another. A proper sense of self, in which one's job is not one's life, and a sense as an official that everything has its season, is yet another. It's why David Souter is the best Justice in modern Supreme Court history and why, even absent term limits, a great judge might decide that the thing to do is to serve no more than, say, 20 years or one's 65th or 70th birthday and then step down regardless of the president then serving. (This, I would suggest, is not a flashy form of "judicial greatness"; it is merely an accurate use of the phrase.)

Other sound or plausible reasons are legion. But until now, I had never heard it suggested that "not liking the president," or possibly--and it does seem in context to be the most likely meaning--just "not liking President Trump specifically"--is a reason to leave judicial office. Even in its more general form, I do not think it is likely to join the standard list of reasons. Since many and possibly most people, in and out of all three branches of the federal government, do not like Donald Trump personally, and others just haven't met him yet, I should think that the more specific, personalized version is just a non-starter.   

The Dis-Engaged Scholarship Cycle?

Am I mistaken in thinking, as I wade through the flood of abstracts for new articles making their way onto SSRN, that this publication cycle faces a stark problem of sudden, unintended irrelevance and forced dis-"engagement" in this year's crop of legal scholarship, at least in public law?

It seems to me that a great many public law articles coming down the pike right now a) deal with issues that were contemporary a short time ago but have been utterly superseded by events; b) assume a host of premises--about methodology, the functioning of courts or executives, about the basic norms of law and the functioning of government, even about fundamental values and even fundamental facts--that are now inoperative or in doubt and newly in need of justification; or c) deal with ideas and proposals that the authors treat not as abstractions but as feasible, practical, going concerns, but which have in fact been rendered as mythical and fanciful as hippogriffs.

I'm not referring to articles that the authors are fully aware are abstract, theoretical, fanciful, imaginative, impractical, or otherwise deliberately disconnected from current events or some reasonably immediate practical goal. Nor am I criticizing that kind of scholarship, at least if it is clear about what it is. (It does seem to me, though, that even these forms of scholarship will often suffer from the problem noted in (b) above. However abstract, they will still often implicitly or explicitly rely on premises that are now in doubt.) But plenty of legal scholarship is not so abstract. It is more immediate and practical in its purpose, aims to respond to current events, advances a goal-oriented political position, or seeks to have some effect in the world on a reasonably short timeline. That's always been true for legal academic writing, for reasons that hardly depend on contemporary politics or scholarship. Rather, it's simply in the nature of the American legal academy, which is still substantially a professional adjunct rather than a university enterprise, and which, despite its trappings, is still structured on a more or less non-scholarly and non-intellectual basis. That orientation is no less present in an era in which current buzzwords like "engaged scholarship" or older ones like "praxis" pop up with regularity. (Although, in fairness, articles that brandish phrases like those are often less practically oriented, and in some ways less "engaged," than, say, the average student comment.) 

It's this scholarship--or so I keep thinking as I peruse the current crop of draft articles--that has been wrenched into substantial irrelevance and "dis-engagement" by events. They read as if the author had bet on a different horse to win. Or they rely on formerly applicable understandings and definitions of political and ideological terms which have been thrown into flux. (Although that flux has been evident for some time.) Or, most understandably, they did neither of these things, but simply failed to account for the degree of disequilibrium we now face. This is not, to be clear, a knock on their quality. Rather, it's a matter of the sudden gulf between their claims to or hope of relevance and engagement, and the reality into which they now emerge. There is already often a gap, borne of the authors' location within the bubble. This is something much more than that. 

Of course this kind of thing happens any time there are significant changes in facts or law, with the ideas that might explain or account for them necessarily needing time to be worked out. We saw some of this with the first Trump term. It took a while before the law reviews started filling with discussions, often excellent, of constitutional and political "norms," illiberalism, and so on. But the disjunction was far less extreme, because that administration featured a larger number of political appointees and career employees who, quaintly, were competent, experienced, conservative, and would reject as contemptible any pledge of personal loyalty to an individual rather than to an office and to the laws and Constitution of the United States. The current personalist regime is being run on a different basis.  

Clearly it won't be long before the machine starts turning out scholarly responses to the current moment. In the meantime, it seems to me that we are about to see a volume of public law articles--including, I'm sure, a fair number of articles operating from conservative premises--whose claims of relevance or engagement were blown out of the water even before they were submitted, and must now be read as abstractions, markers for the future, or memorials.  

Vain, Wrong, and, Dangerous. But at Least His Grammar is Awful.

One might say that Ed Martin is a gift that keeps on giving, or at least that he can be relied upon to serve as the entertainment between episodes of terrible behavior at Main Justice, were it not for the fact that he currently serves as a federal law enforcement official. That somehow takes the joke out of things, leaving me to wonder what you call something that is ridiculous without being at all funny. Outrageous, I guess, in the sense that it evokes outrage in decent people. Or perhaps horrifying. 

I think a government that not only steeps itself in social media (a mistake administrations have been making, while congratulating themselves for being savvy, since Obama) and uses Twitter as the administration Slack page, but also takes its cues for how to speak and behave directly from those sloughs, is acting unwisely and dishonorably. Regardless, I'm not inclined to treat any given stray remark, often by some punk staffer, as the last word about that office or officer's views. But when you say something that contains multiple errors, all quite telling, and take the time and effort to make the graphics all pretty, I think at some point your audience is entitled to conclude that you have moved beyond slips of the tongue or pen. Especially if you put it up on your (currently misnamed) official Twitter page. 

The message in question:

Start with the fact that Martin, not having been confirmed by the Senate, is not the the U.S. Attorney for D.C. yet; he remains the interim U.S. Attorney. A pedantic point, to be sure--unless you are addressing someone whose amour-propre led him to insist on being referred to as "U.S. Attorney" in court filings within days of taking his interim position. Add the general idiocy about putting America first--if not as a misunderstanding of journalism, then as evidence of ongoing ignorance of, indifference to, or contempt for Title 1.7 of the Justice Manual (in fairness, he is only the interim U.S. Attorney), as well as of general principles of discretion and good taste. Add the gross misunderstanding of who he and his office represent. (Also in fairness: Martin is not always clear on who he represents.) At that point, the misplaced apostrophe and incorrect plural has to be seen as the cherry on top.

I would like to greet this with better humor. Everyone loves a clown, after all. But I am so fond of the First Amendment. And the interim U.S. Attorney has spent a busy week or two demonstrating a decidedly dubious regard for it. His tryout round was bad enough. But his letters of last week, seeking "clarification" from Democratic members about speech he treated, absurdly, as raising "threat" concerns, suggested that he is elevating the use of state power to chill speech from an unforced error to a mission.

Like FIRE, whose statement I link to immediately above, I spent much of last week thinking of this in terms of a governmental abuse of true threat doctrine. But I think that is giving Martin too little credit for ambition, and paying too little attention to the content and context of the statement from Sen. Schumer (an asinine statement, to be sure) that Martin targeted for inquiry. Really, this is more properly seen as a revival--impressively, in the absence of anything like a war or emergency--of circa-1917 views on incitement. "The Alien and Sedition Laws constituted one of our sorriest chapters, and I had thought we had done with them forever." I rarely feel the need to quote Justice Douglas, but, I guess, never say never again.

A clown, as I say. But more in the Pennywise vein--still a clown, but also dangerous and scary. As always, in this personalist or patrimonialist administration as in any other, the final blame rests at the top. But it certainly includes the interim U.S. Attorney himself.  

Is There a Non-Imbecilic Version of the President's Latest Assertion?

That assertion being, "He who saves his country does not violate any law." (I have cleaned up the quote out of respect for the English language.) 

There is. In more contemporary legal academic literature, it is represented by several fine articles. One might start with Henry Paul Mongahan's The Protective Power of the Presidency, a 1993 Columbia Law Review article whose core question is the extent to which "the President, acting on his or her own, [can] invade the rights of American citizens in circumstances which Congress could—but did not—authorize." Monaghan concludes that the president "cannot act contra legem," but that the executive may have a bounded "protective power" to "protect and defend the personnel, property, and instrumentalities of the United States from harm." He makes clear that the protective power he envisions is limited, both in scope and in nature; it does not, for instance, contemplate the use of the word "harm" in the distended contemporary manner beloved these days on both sides of the political horseshoe. (That seems obviously relevant here, since the only way in which the words "saves his country" could possibly be applicable at present is a fatuously general argument that not having the country one wants, the second one wants it, justifies extralegal emergency measures.)

Another chunk of material addressing this question was birthed after 9/11. The positive case was put by Michael Stokes Paulsen in his 2004 article The Constitution of Necessity. Paulsen argues there that "the Constitution itself embraces an overriding principle of constitutional and national self-preservation that operates as a meta-rule of construction for the document's specific provisions and that may even, in cases of extraordinary necessity, trump specific constitutional requirements. The Constitution is not a suicide pact; and, consequently, its provisions should not be construed to make it one, where an alternative construction is fairly possible." And where such an alternative saving construction is not possible, the necessity of preserving the Constitution and the constitutional order as a whole requires that priority be given to the preservation of the nation whose Constitution it is, for the sake of preserving constitutional government over the long haul, even at the expense of specific constitutional provisions." Paulsen argues that "the primary [but not exclusive] duty of applying it and judging the degree of necessity in the press of circumstances" rests with the President. He describes this power as both necessary and dangerous, obviously susceptible to misuse, and adds that both Congress and--more pertinently today, for the time being--the judiciary have a duty to independently review any exercises of this power: "While the courts, and Congress, should recognize the correctness of a doctrine of constitutional necessity,...that does not mean they should go along with whatever the President says. A constitutional power of necessity necessitates checks on its exercise. Complete congressional and judicial acquiescence or abdication has a name. That name is Korematsu." 

Another example of the positive case from the same period comes from Oren Gross, who argued in 2003, in Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?, that "there may be circumstances where the appropriate method of tackling grave dangers and threats entails going outside the constitutional order, at times even violating otherwise accepted constitutional principles, rules, and norms." He argues that any such conduct must involve an open and public acknowledgment of the extralegal nature of these actions, and it may then be judged by the public, including other officials, who may approve it or may call that official to account and require that he or she "make legal and political reparations." 

On the other side, I have always been impressed by Sai Prakash's The Constitution as Suicide Pact, written as a response to Paulsen's article. Prakash argues that "though the Constitution creates a powerful chief executive, it does not empower the President to suspend the Constitution in order to save it." He writes eloquently: "I do not regard it at all obvious that people framing a constitution would include an 'anti-suicide' provision. In fact, there are many sound reasons why reasonable people might omit a rule of necessity. To begin with, constitutional framers might value other things, like religious freedom or a slavery prohibition, more than the durability of the constitution and the nation. In particular, constitutional framers might not wish to frame a constitution that permits the expedient sacrifice of such principles, even temporarily. Moreover, constitution-makers might believe that officials will violate the constitution on grounds of necessity anyway, and that we ought not to multiply those violations by explicitly sanctioning what otherwise might occur once in a blue moon." This argument, I should think, will be especially legible to religious individuals, who may think of any given state as a temporary expedient that is ultimately subordinate to higher values and ultimate things. (Admittedly, this understanding may be different if the religious individual in question is an idolater.) 

Needless to say, all of these arguments, back and forth, have occasioned a rich library of commentary. And these are just recent efforts. All of them take place against a longer history of argument, stemming most particularly from Lincoln's presidency, about what presidents or other officials may do, when they may act extra-legally, and whether such actions should be understood as non-violations or justified violations of law. Viewed from a suitably wide perspective, they do not break down into party or crudely ideological lines. Arguments for expansive governmental power, executive or otherwise, are often grounded in some form of "necessity." What the best of these discussions have in common is a sense that something more than legal realism or crude power is at play in these discussions, that any such power that might exist is deeply perilous even if it is necessary, and that it ultimately relies on candor, on a non-shirkable duty of independent evaluation by other officials and by citizens, and on the willingness to face the consequences of one's decision to act in a way that would normally be considered a law violation--although this runs up against what Prakash, writing elsewhere, calls "an extreme executive aversion to admitting illegality during crisis,....a tendency that predictably leads executives to press rather sweeping readings of their constitutional and statutory authorities."

I should add, however unnecessarily, that none of this is present in today's eccentrically capitalized presidential statement. Just as one should be willing to acknowledge serious arguable questions and not dismiss them simply because the source is poor, so one should be cautious about putting lipstick on a pig. It's not a fatal fault of a presidential argument that it could be put more seriously and deeply. We do not expect depth from presidents and should, in my view, even be wary of any desire for them to be eloquent. But we should distinguish between elaborating on someone's actions or arguments, and engaging in post-hoc rationalizations on their behalf, in a way that risks wildly missing the point. One should not assume that a rationale is called for or even relevant when addressing the words or behavior of a gross, unbridled appetite wearing the skin of a man. One should not too readily assume that his words have much semantic content at all, as opposed to being barbaric yawps. 

Neither, however, should one somehow take as a given that a president's statements are "mere" trolling. (Nor should one forget that trolling is not an acceptable activity for mature adults, in or out of high elected office, even if it has soaked deeply into our culture and appears to be this administration's sole mode of speech. On that point, the title of the second Prakash paper I've quoted seems unusually apt: The Imbecilic Executive.) I don't want to dignify what can't be dignified. But it is nice to be reminded that in other places and times, intelligent people have discussed intelligent versions of these genuine questions. For some, that might indicate that those discussions were already dangerous, insofar as they legitimized dangerous behavior. I'm more inclined to think that what it suggests is that those conversations could only take place because everyone involved in them assumed and shared, perhaps far more than they realized, a baseline level of seriousness, legality, and common ground about the ascertainment of facts. The common ground between the people on opposite sides of those arguments was vastly greater than the space between this president and everyone involved in those debates.       

What is it Like to Be an ABA Member?

One useful way of spotting the indefensible is that those writing an apologia for some action write around that topic but not on the question itself. A nice example of this is a Volokh Conspiracy post yesterday discussing one of the day's flood-the-zone stories: a letter from Andrew Ferguson, chairman of the FTC, stating that political appointees are barred from, inter alia, renewing existing ABA memberships, and prohibiting the agency from any spending to facilitate any employee's participation in an ABA event. The letter is an exemplary Trump administration missive written in the Trump administration house style. It's exemplary, among other things, in that it curries favor with the boss; how fitting that it was dated February 14. It is exemplary also in being deliberately provocative without being especially purposeful, in centralizing power and favoring it over expertise, and in being uneven and self-serving in application. (That prohibition on spending for participation in ABA events does not include commissioners or their staffs.) And its signs of the house style include repeated invocation of the personalist nature of the presidency (eight uses of the president's name in a little over two pages), breathless praise and puffery, bad writing, and bald dishonesty. (Remember: the bald dishonesty is the point. A more elegant lie would not serve the purpose of demonstrating loyalty. Like hypocrisy, it would pay tribute to virtue; and reserving a place for virtue might denote a dangerous independence.) 

In almost-defending the letter, the VC post argues that the ABA has had it coming for a long time, without ever getting to the rightness or wrongness, seriousness or silliness, of the "it." This is a justification in roughly the same way that one might accurately discuss the loud barking one's neighbor's dog and the need for it to be better behaved, while avoiding discussion of the fact that you dealt with the problem by poisoning the dog's food. 

I'm sympathetic to the criticisms of the ABA. I have belonged to the ABA since 2000. I have found it useless at best as a membership organization. Its function in my own life is minimal. The ABA Journal, which has had good moments in the past, is now so poor that it makes state bar magazines look good by comparison. The political leanings of the organization have long been evident. (Although, predictably given the rhetorical exaggeration of the house style, Ferguson's letter gets those leanings wrong. It's establishment liberal, not "leftist" or "radical left-wing," a distinction that Ferguson, a longstanding member of the establishment, ought to understand. For its entire history, the ABA has always only ever been either establishment liberal or establishment conservative.) I groan at some of its accreditation moves and at other policy proposals and ignore its amicus briefs. I remain a member for pretty typical reasons: one is simple inertia, and the other is that it occasionally does things in my area that I would like to know about. That second reason would be even more pertinent if I were in an area of law--say, antitrust--where bench, bar, and academy mix more often and productively. I would be interested in such matters even if I disliked many other aspects of the organization. As with, say, the Federalist Society, I might belong because I thought it put on some good events, or had some good sections or chapters, even if I found other chunks of the ABA objectionable or trivial. (And like the ABA, I belong to the Federalist Society most years, with lapses having more to do with inertia than the desire to make a statement.) It is an extremely weak-tie membership group. 

For those reasons, I could well imagine any administration criticizing the ABA or having no interest in working with it. (Although I expect that, in reality, this administration will often work with the ABA at multiple levels, while also attacking it and engaging in dumb-shows of this sort.) But that's not the "it" here. The "it" is a flat ban on membership in the organization for political underlings and a categorical refusal to subsidize even the most politically anodyne and practically valuable event participation by any employee. (Except, of course, for the commission's ruling class.) It is, as the letter's last paragraph makes clear, a literally and purely performative action. After years of performative exercises by administrations of both parties, one ought to be used to it, even as one notes the aggressively personalist and cumulatively authoritarian elements that distinguish the Trump administration. But one longs for the days of vaguely serious and non-trivial government, and vaguely serious and purposeful intellectual discussion directed at points of substance and significance.   

Nonsense--Not Acidental, But Deliberate

I suggested the other day that a lodestone of this personalist presidential administration is its historically familiar requirement of self-abasement: what better way to ensure the non-interference of principled and professional individuals, the kinds who gummed up the works last time, than to require anyone seeking an executive position to engage in a ritual act of self-humiliation--to deny one's own principles, the evidence of one's own eyes, and one's own good name? To be sure, there are committed ideologues and partisans seeded among the riffraff. But, apart from the fact that to think of Trump himself as an ideologue or partisan is to make a category mistake, partisanship and ideology are insufficient safeguards against the possibility that an individual might find in those beliefs something that transcends personal loyalty--not to the president as an officeholder or the presidency as an institution, but to the man himself. Ideologues and partisans may turn out to have character. Mandatory public self-abasement is the best way to weed out such people.   

Today's ongoing news about the Eric Adams transaction offers further evidence. The appearance of Mayor Eric Adams with Thomas Homan is Exhibit A. The appearance was not incidental; it was the point. That point was beautifully captured--again, in words with a remarkably apt historical resonance--by Adams's awkward silence and apt self-description: "I'm collaborating." (Truer words....) And it was underscored by Homan's suggestion that if Adams "doesn’t come through, I’ll be back in New York City,...in his office, up his butt, saying where the hell is the agreement we came to?" (I understand that confusing vulgarity with fortitude and energy is a bipartisan failing in a country that rejects dignity and tradition. I enjoy being vulgar myself, outside of the classroom. But I expect high officials to avoid it, even in an administration whose chief figure is famed as a short-fingered vulgarian.)

Recall that the president's* two stated excuses for wanting to dismiss the Adams indictment were that the timing of the indictment was improper, including its proximity to the primary and general elections, and that the indictment would interfere with Adams's support of the administration's immigration policies. Each was described as an independent justification. Neither was said to indicate any conclusions concerning Adams's guilt or innocence or the strength of the case against him.

How do Homan's words comport with these justifications? They strongly suggest two things. They suggest that the talk of interfering with the timing of the elections was the sheerest nonsense, since Homan's threat indicates that the administration will let the sword fall at a time of its own choosing, quite regardless of that timing. And they suggest that the president's argument* that there was an appearance of impropriety in prosecution because Adams criticized the Biden administration's immigration policies shortly before the indictment (but long after the commencement of the rigorously monitored investigation) are also nonsense. This administration has promised, in almost as many words, that it will refile charges against Adams (who it has not said is innocent) precisely if and when it is unhappy with him. This is not even the appearance of impropriety, but its very definition. A passage from Bolt's A Man For All Seasons springs to mind--one of many that do these days, actually, this one quite frequently: "MORE: You threaten like a dockside bully. CROMWELL: How should I threaten? MORE: Like a minister of state, with justice!"      

It is not surprising that I have seen no defenses of the administration's actions or the president's arguments by any lawyer who is even marginally fit for the profession. Those arguments are transparently poor. And that is not an accident, but the point. Adams labeling himself a collaborator, Homan indicating that he doesn't take the stated reasons for wanting to dismiss the indictment at all seriously as justifications for this transaction with the president, and the embarrassing lack of seriousness of those reasons (especially the president's follow-up letter* accepting Danielle Sassoon's resignation) would not serve their deeper function if they were not facially absurd and humiliating to those offering them (assuming a lack of ignorance and the capacity for shame) and publicly offered. A serious effort might indicate the belief that a serious effort is called for, and that a proper counter-argument might change one's mind despite the presidential will. Obviously the justifications and arguments are lies, marginal fig leaves for a corrupt deal. But the important thing is that they be visibly bad ones. Anything else would be contrary to personalist administration, both because a proper effort at justification would imply that the president cannot do as he wishes, and because they would not provide the requisite element of self-abasement on the part of the people offering them. This administration's fundamental approach to securing the personal loyalty of its officials it to require that they behave in a way that leaves them fit for no further decent use elsewhere. And advertising the fact that unfitness and unseriousness are job requirements for service in the administration helps winnow the pile of resumes. Every administration has its share of individuals who are vice-ridden, casual or contemptuous of the truth, lacking in character, dishonest, care too much about their own skin, curry favor, flatter like sycophants, and, yes, have the personality of dockside bullies. What is unusual is the structuring of an entire administration to make this a feature, not a bug.  

* Technically, some of these arguments were not made by the president himself, but by underlings like Emil Bove. It seems fitting to attribute his words, and Homan's to the president directly, since the indivisibility of this executive branch is its basic position. Trump's own statement that he "know[s] nothing about the individual case," which is also probably a lie, are irrelevant.  

"Forgiveness," Modified: The Abasement Principle

Over at the Volokh Conspiracy, a modest proposal for a constitutional amendment providing that "federal and state elected officials can be indicted while in office, but cannot be tried for those indicted offenses until after they no longer in that elected office." The proposal, derived from Texas's so-called "forgiveness doctrine," is aimed at curbing "Lawfare," admittedly an undefined and imprecise term whose bounds are as difficult to figure out as its harms are "difficult to quantify." (Public discourse these days seems to run, a remarkable amount of the time, on neologisms and coined phrases. This is not new--"McCarthyism" has stood in for a great many things--but it does seem especially widespread in our age of morons with megaphones. The habit is even more popular among the highly credentialed morons, who seek primacy or "novelty" in crowded, competitive scholarly and discursive environments. I see little evidence that these coined words and phrases play a clarifying role. My rule of thumb is that if a thing is worth saying in one word, it's worth saying in five clearer words from our existing store of English.)

It's an interesting proposal. But it's not sufficient, for a couple of reasons. A full and proper act of forgiveness usually entails some degree of acknowledgment by the wrongdoer of his or her misconduct and some degree of repentance. It may be impractical to have this process occur through an effort to communicate with the entire electorate. But it is possible to have a single figure stand in for the public in this step. The obvious candidate is the president, with his or her singular nature. 

The other problem is that, insofar as the doctrine is in part fitted to making officials "of use [to] the executive branch" as a figure willingly carrying out the president's will, too absolute a rule leaves a disturbing amount of freedom on the part of the local or federal officer not to serve the presidential will. Local and federal officials owe obligations to their voters and to the laws and Constitution of the United States and of the several states. What if they put things like local political sentiment above service to the president, who may be the locus of a profound popular national mandate? What if they embarrass the president--the representative figure, remember, in the forgiveness process--by disagreeing with him or publicly correcting an obvious lie or error on his part? Can we still call the forgiveness process complete under such circumstances? No. A sword of Damocles is needed--some ability on the president's part to require an ongoing show of repentance and fealty, with the reprieved figure knowing that the president can order the charges to be refiled at any time and may or may not issue a pardon.

In place of the proposed "forgiveness" doctrine, then, I suggest a modification: an "abasement doctrine." Under this doctrine, officials seeking some measure of grace or favor from the president, such as intervention into an ongoing criminal investigation or prosecution, must make a public show of self-abasement. In putting themselves in the president's good graces, they show that they are truly sorry for their wrongdoing. By leaving it entirely to the president's own discretion whether to forgive or not, the abasement doctrine ensures that both repentance and forgiveness are willing and voluntary. Because the forgiveness, along with the suspension of criminal charges or other consequences, is still within the president's discretion, the abasement doctrine requires the person seeking forgiveness to make a clear showing of self-abasement.

This required showing might be satisfied through various forms of public self-humiliation, such as agreeing with patently false factual propositions, denying one's previously stated policy positions with little or no persuasive explanation, praising the non-praiseworthy and condemning the virtuous, or even publicly denying and befouling one's most dearly held principles, sneering at one's own religious faith, and so on. Someone willing to do this is clearly going to be subservient to the embodied national political will. And since all of this takes place under Damocles' sword, a point that might be reinforced if the president pretended to act in a mercurial, prickly, arbitrary, easily offended manner, the person seeking forgiveness knows that it can be withheld at any time, with or without good reason. Such an individual--already demonstrably willing to abase himself and now also under a continuing and uncertain threat of punishment--will surely do everything in his power to be of use to the chief executive. 

Although the abasement doctrine might, in a technical sense, apply only to a narrow set of conduct, the general principle might be extended usefully throughout further policy realms. This is especially true in a maximal Article II world, but that in itself is insufficient. Policies might be centralized, made through executive orders rather than legislation. And the policies themselves might be selected to enhance the opportunities for presidential forgiveness and individual or collective abasement. If policies were not only made through executive order rather than legislation, but also employed policy instruments that maximized opportunities for individual exemptions and exceptions, the president might more fully exploit the abasement doctrine--now more of an abasement principle--to ensure their ongoing loyalty and obedience. Tariffs, for example, may serve the abasement principle far better than more economically "conventional" or "sound" but non-abasing forms of national trade and business policy. Suspending all national business, on a non-legislative and non-agency-driven basis, while exempting or reviving only those programs favored by the president would also create multiple opportunities for shows of abasement. 

I can already hear the objections. Doesn't such a policy encourage people with genuine principles and and a sense of character and virtue to avoid public office? Doesn't it incentivize the craven and cowardly? Will it disserve rule of law values? What if a president is not pretending, but actually is arbitrary, whim- or ego-driven, quick to attach personal slights to what are actually matters of office, insistent on personal loyalty rather than loyalty to law? Even if it makes the most sense to use the president as the locus of the forgiveness process, doesn't this encourage a departure from virtuous, law-obedient, reasoned government in favor of personalism or even a form of personalist dictatorship? Did you not read A Man For All Seasons?

I am aware of all these costs. But there are benefits. I think. Maybe. Actually, I'm not sure. It's entirely possible that this is not so much of a cure for a problem and more of a rationalization for a democratic and rule-of-law cancer. ("It's painful, brutal, and mortal. But you'll lose weight.") Still--it's worth thinking about!  

 

Past the Extreme, Actually

I agree with Howard that the Levinson and Pildes article is very relevant to the current moment, keeping in mind that they wrote it on the understanding that it has been parties have been more relevant than powers for quite some time, including periods in which our conventional habit was to treat separation of powers as if it was still relevant and operative. But I think he misses one trick--a point that suggests that reality has outstripped the Levinson and Pildes thesis, perhaps rendering it descriptively inaccurate on the other end of the extreme. Howard suggests that current events indicate--or confirm, if one agrees with Levinson and Pildes--that party loyalties prevail over branch loyalties. It seems to me that the problem includes but is broader than that. The larger problem is that, in our two-party system, we actually have not one but zero functioning political parties--one because it is locked in the grip of personalism, and the other because it currently lacks almost any identity at all.

The untrammeled personalism of the "party" in power is indeed a train wreck for separation of powers and federalism, among other things. But it's worth noting that Levinson and Pildes didn't think the inevitable result of separation of parties was chaos and incoherence--not, at least, as long as the parties were not only polarized but "cohesive." The adoption of personalism as a substitute for ideas or principles on the part of the Republicans is indeed a serious problem for this or any party in power. But when the opposition party is also lacking even a substitute form of cohesion, including ideological cohesion or a cohesive program--even a cohesive program of opposition--and certainly lacks anything like a leader, the problem is graver. In those circumstances--our circumstances, in my view--the possibility that party interests might serve as a framework in place of the branch interests that Madison envisioned is bound to be even more imperfect and unreflective of any sort of constitutional design.  

UPDATE: Just a brief note about Howard's subsequent post. I doubt that "new ideas" as such would make a difference, at least not unless those ideas reflected some actual change in the electoral zeitgeist and uptick in party energy and enthusiasm. But there still has to be enough of a there there, enough of a core around which cohesion can take place, for a party to effectively function as an opposition. I don't see that as being the case currently, even by Will Rogers standards. ("I am not a member of any organized political party. I am a Democrat.") That assessment may be mistaken but is certainly not without foundation. And it should not be surprising, given the period of realignment characterizing both parties. The Republican Party has effectively papered over its ongoing post-fusionist debates with a personality; the Democrats have neither resolved what they are nor yet found some means of successfully avoiding that issue.

Independent Agency or Codependent Agency?

As I watch for various aspects of "realignment" that render dated a great deal of commentary that relies on "left vs. right" or "conservative vs. liberal" classifications, I was struck by one passing example of this, from Senator Elizabeth Warren:

Information and discourse from That Place (where That Place equals any social media platform) are to be treated skeptically if not contemptuously, and it is always worth remembering that many or most of the statements from public figures and elected officials on such sites come from the minds of smart, earnest young creatures whose instructions are imperfect and who lack fully developed prefrontal cortices. And I have no reason to doubt this prediction from Senator Warren, or at least (assuming someone else wrote the tweet) "Senator Warren" in a more corporate sense. I have the general sense that she maintains a strong interest in the agency. Strictly speaking, though, shouldn't we consider it odd for a member of the legislative branch to pledge in advance the support of an independent executive-branch agency, as if this single senator can speak confidently for it? Could she not at least instruct her staff writers to maintain the niceties of form?   

"The great ones..."

Reporters naturally use the best quotes from their interviewees and give them good placement. So one may be tempted to overread Georgetown Law professor Brad Snyder's quote in this story about Supreme Court justices and retirement, which makes the third graf:

“The great ones get their backs up,” observed Georgetown Law professor Brad Snyder, author of a Felix Frankfurter biography and a scholar of the 20th century court, referring to retirement pressure. “They say ‘No one can do this job as well as I can.’”

Since the second part of the quote is as apt to describe hubris as greatness, and is untrue besides, it seems clear Snyder does not mean "great" in the sense of qualitative greatness. A later quote from Snyder in the story appears to confirm that: "'They are trying to keep power, and they are trying to stay relevant.'"

It is still worth lingering on the word "great" for a second even if Snyder is cleared of any charges here. "Great" seems accurate in some ways: Many of the most famous and influential justices have indeed served long terms and declined to leave early or even on time. John Marshall was the fourth-longest-serving justice and longest-serving Chief; Holmes, Thomas, and Ginsburg have all been celebrated, admittedly at various times and in varied circles, and all stayed past the point at which honor and fitness suggested they should step down. (Thomas is still serving.) 

This is not a coincidence. I refer readers to the June 1995 issue of the NYU Law Review, which contains an excellent symposium on judicial biography. Of particular note is a pair of articles--by G. Edward White and Sarah Barringer Gordon--about the historiography of judicial reputation and the canonization of judges as "great." As befits a great symposium, the writers are not all in agreement on all points. But they are widely agreed that justices like Holmes and Brandeis were not held up as "great" because there could be no doubt on the question; whether they would be held up as great, how that greatness would be described, and so on were all contingent questions.

I would add (as various commentators in the symposium do) that you need folks around to do the holding-up: a claque of former clerks, influential friends or followers, writers pursuing some ideological project, and others who become "invested," to quote White, in building and burnishing those justices' reputations (and, often, their own, or at least the reputation of the project they wish to advance) and defending them against critics. Longevity doesn't guarantee that you'll accumulate such a cadre of supporters, or that they will have the eloquence or status to push forward your canonization successfully. But it sure don't hurt any. The shorter your term of service, the fewer followers you'll have and the fewer opinions for people (preferably people with the right bylines) tp become attached to and lionize for political and ideological reasons as well as reputational ones. As former Justice David Souter observes in the story, "For most of us, the very best work that we do sinks into the stream very quickly."

Obviously, beyond the question of PR-and-politics, what constitutes judicial "greatness" is contestable, since it's a word--like "courage"--that's protean, a bucket that can be filled with many things and often has been filled in advance with a crude checklist of substantive results, rendering the epithet almost useless. So I'll just cast my own vote and note that the greatest justice discussed in the piece is in fact Souter, precisely because he provided a reasonable term of service and then left quietly--and, one might add, has further blessed us with a null set of post-tenure books, neither a weak-soup memoir nor a pamphlet scolding his or her replacements. ("Dies at __; Published No Books" will one day be a wonderful tribute of a headline to an obituary for a Supreme Court Justice.) It's in the graceful willingness to sink into the stream that the greatness lies. May we honor and forget such judges more often. 

A Nice Bit of Law and Political Economy-Oriented Reporting on Disability Accommodations

The Chronicle of Higher Education is at its best when it offers the occasional bit of long-form journalism, filling the gap left wide open by the long-dead, long-mourned magazine Lingua Franca. Here's an interesting piece (paywalled, alas) in that vein. It's written by a professor but clearly must be taken to be a piece of journalism rather than expert commentary--which is good, because I'm not an expert reader on the subject, but it does a good job of interviewing a variety of individuals and discussing recent studies. The headline asks, "Do Colleges Provide Too Many Disability Accommodations?" The answer is, "Most likely, yes."

My sense is that, if one takes the definitions that seem increasingly to prevail in the mine run of legal academic literature, the article, and the issue it discusses, can be thought of as a law and political economy story. (Admittedly, some scholars use more specific definitions of the term; others use definitions derived from the 200 years of law and political economy scholarship that preceded the present, somewhat amnesiac version; and still others have retooled their articles for the submission game by adding "law and political economy" to what are apparently already-existing articles, while using a highly protean definition of the term.) At its broadest level, the article can be understood as arguing that the force behind universities granting an excessive number and degree of disability accommodations is neoliberalism. (For a definition of that term, see my prior parenthetical note.) More specifically, it can be taken to argue that the reason for the phenomenon is a combination of institutional factors: 1) laziness, greed, budget cuts, fear of litigation and/or increased insurance premiums, indifference to professors' views and role in governance, and a capitalist imperative to enroll more students and adopt a more consumer-oriented attitude on the part of universities; 2) greed and market imperatives among disability testing services; 3) careerist cowardice among disability scholars; and other forces. The result, the author argues, is an exacerbation of existing inequality:

The equity problem should be clear: If accommodations help everyone, and we relax the diagnostic criteria necessary for securing them, wealthier students will experience even more of an advantage, which is precisely what we are seeing. Accommodations are disproportionately secured by the highest performing students, further increasing the achievement gap. In one study of students receiving accommodations at a selective private college, most “showed above-average cognitive abilities, average academic skills, and no evidence of impairment.” Limited resources should be going to the students who need them most, not the students who are most skilled at securing them. A more restrictive approach to diagnosing disability and granting accommodations would allow for increased focus on lower-socioeconomic status students who are dramatically underperforming compared to their peers but do not have a diagnosis (or a disability). It would also lower the disability-provider-to-student ratio, facilitating better care for students with more serious disabilities.

Given the forces the author discusses, and universities' own place in the ecosystem of late capitalism, I am dubious of the author's closing suggestion that "higher education is ideally positioned to take the lead" on addressing these issues. This seems like the kind of BS we usually see at the end of a perfectly interesting descriptive and analytical article because of individual academic market actors' inability to resist the pressure to include a set of recommendations for reform. Nevertheless, and without endorsing all its analysis, I found the article interesting, and no doubt most teachers will. Read the whole thing, if you have the economic power to do so. 

 

The Political Economy of, inter alia, Law and Political Economy

From this recent (and paywalled) piece in New York Magazine by Jonathan Chait:

Six months after Obama left office, Larry Kramer, a law professor and president of the William and Flora Hewlett Foundation, convened a meeting at the ‘21’ club in Manhattan. The group included an array of leading philanthropists, think-tank heads, donors, progressive writers, and academics. As Michael Tomasky, one of the participants, later reported, the group continued its discussions the following day at the Ford Foundation, where its members began to envision themselves as the founders of a new intellectual paradigm that would move beyond the failed neoliberalism of the Obama era....

[A]nti-neoliberalism had some key advantages that made it irresistible to its progressive audience. It supplied an explanation for Trump’s victory that did not require progressives to compromise on their political values in order to allow Democrats to regain power. To the contrary, this theory allowed — nay, demanded — the fulfillment of every progressive wish. A Green New Deal, a jobs guarantee, higher minimum wage, Medicare for All — these proposals were not only possible but politically necessary to defeat Trump.

The plan devised by Kramer and his allies explained how anti-neoliberal thought would be disseminated. “It makes sense to begin with the academy and think tanks — though we will not want to confine ourselves exclusively to these even in the beginning — and to work out from there in subsequent stages,” a Hewlett strategy document explained. Hewlett poured $140 million into grants to writers, magazines (The Atlantic, Washington Monthly, and The American Prospect, among many others), conferences, podcasts, academic centers (at universities like Harvard, Columbia, and Georgetown), and think tanks. The Roosevelt Institute’s budget more than tripled. The massive upsurge in demand for essays, columns, and lectures assailing neoliberalism was met rapidly with a booming supply....

Devotees of the anti-neoliberal movement gained special access. Jennifer Harris, who had been running a Hewlett Foundation grant program called the Economy and Society Initiative, which sought to counter neoliberal thinking, joined the administration and became, as the Times put it in a flattering profile, “the Queen Bee of Bidenomics,” who “had a hand in everything from making the case for industrial policy to designing a new framework for trade.” Twenty-five grantees from Harris’s project, as well as two fellow Hewlett employees, joined her in the administration.

I offer all of this in a fairly value-neutral way, descriptive way. At most, the value added here is just good plain caution. I am not endorsing or disagreeing with the rest of Chait's article. I definitely don't intend this as a criticism of law and political economy as a scholarly endeavor. (I understand that some members of the law and political economy movement who currently reside in the academy may also understand LPE as a political project and either move, or see themselves moving, between the academy and other, non-intellectual spaces, such as think tanks, foundations, congressional staff, and the executive branch. I don't intend this as a judgment of that branch, either, but to the extent that those individuals are engaged in extra-academic matters that involve seeking and exercising power and status, of course they deserve careful scrutiny, journalistic investigation, and, where warranted, criticism. If you're in the arena, you're in the arena.) To the contrary, I find the best of the law and political economy work excellent and provocative, although I remain perplexed that so much of it says so little about the prior 250 years of work in political economy. (To be sure, a certain number of articles are creeping into the law reviews that bear the words "political economy of" in their titles but say nothing for which any grounding in political economy, old or new, is required. But that is pretty standard in the period when a new entrant into the "law and" field becomes sexy. The best work should not be blamed for the inevitable coattail-riding. Only the authors of that work, and law review editors, and the legal academy for relying on law review editors, should bear the blame.)  

At most, I offer it to suggest the following: 1) As Jesus said, if I recall correctly, the rich are always with us. That most definitely includes academics, philanthropists, and "progressive writers" who hang out at the 21 Club or the Ford Foundation building. 2) As I suggested the other day, journalism lost a lot when the era of mass and diffuse funding from large and small businesses through advertising faded. Targeted funding from ideologically committed groups for specific projects is dangerous as hell, and one should distrust the magazines, radio networks, and other media organs that take that money, with or without disclosure. 3) Mocking the number of people and projects that are in a symbiotic relationship with and draw sustenance from the teat of foundations, billionaires, establishment types, and so on is pretty low-hanging fruit. It should be plucked at every opportunity. 4) More to the point, it should be observed. For every political economy-draped narrative that involves political movements, funded by shadowy figures with connections to vast reserves of money, engaged in ideological projects and seeking to extend their power and influence, there is almost certainly a counter-narrative about the money, foundations, shadowy figures, and unmentioned motives behind the effort to frame, publicize, and exploit that narrative. As long as things like foundations, funders, and project meetings are involved, there is a political economy story--one that generally involves competition for power, status, influence, employment, funding, and prestige within both the elite academic ecosystem and the foundation/think-tank/rich-philanthropist-heir ecosystem. It's a competition for money, power, and status all the way down.

Personally, I always find both sides of the game--both the shadowy networks that are written about and the shadowy networks that write about them--interesting and worth investigating. It's only when we pretend only one side exists that we fail in our intellectual duties and risk being suckered.     

 

A Reply to Howard on the Press

I appreciate Howard's courteous reply. I hope it is clear that my rather tartly worded post is aimed not at Howard but at a particular group of press critics. For me, Nichols is not terribly important. (I think this is also how I would characterize his writing in general these days; I've admired some of his work but I think he's imbibed too much Internet fame and become too much the Atlantic contributor, both of which are intellectually harmful.) Rosen and Sullivan, on the other hand, are indeed, in my view, very bad press critics; they were bad even before Trump announced his first candidacy and, like many, got far worse after that.

I appreciate Howard's further elaborations in his post below. (And note the earlier post that elicited my sharp words about Rosen and Sullivan.) In attempting to think more specifically about his views, as opposed to those of the critics I was warning against, I imagine that, as is often the case, there are vast fields of agreement, and that identifying the precise points of disagreement is more valuable and difficult than anything that follows from that. 

As far as that goes, I also deplore inaccuracy and imbalance; who doesn't? But I do disagree with his add-on reference to inaccuracy and imbalance "in the name of objectivity." This, too, is a popular view and, lest there be any mistake about it, was oft-heard back when Howard and I were in journalism school. But I take the view that 1) if the word "objectivity" became a cliche in journalism-talk, "there is no such thing as objectivity" (a phrase Howard did not utter, to be clear) has long since attained the same status; and 2) for journalists, writing in the heat of the moment, often unburdened by knowledge and increasingly unaided by good editors, shooting for objectivity is much better than discarding it because it is incapable of perfect attainment. I'm happy to agree to disagree about this or, as I said, to figure out exactly where and how much we disagree. I would simply point readers to Marty Baron's arguments on this point (there is a critical response from Wesley Lowery, who I would put generally in Rosen and Sullivan's company) and a related argument from Kwame Anthony Appiah about neutrality. Of course, used this way "objectivity" becomes more of a placeholder for a set of institutional goals and practices, and I would be fine with it if we used the term "professionalism," or "kumquats" for that matter, instead. I do not think rejecting objectivity does a better job than shooting for it when it comes to avoiding "narratives," both because they're in the nature of the game in journalism and more broadly because we all engage in narrative framing all the time. Nor does it do a better job of avoiding partisan narratives in particular.

I don't think the press is especially or uniquely susceptible to narratives pushed by Republicans as opposed to narratives pushed by Democrats, a phenomenon which happens with equal frequency because both parties are lousy with professional narrative-pushers. We did not live through two weeks of repetitive commentary about childless cat ladies because the press was independently pursuing an issue without worrying about accusations of bias. The chances that the quote was unearthed and pushed by someone other than a Democratic opposition researcher asymptotically approach zero, and the press ate it up. The press did not go all in on Biden's age because it was buying into a Republican-concocted narrative. It did so because 1) there was an actual issue there, 2) it was a hell of a story, 3) the debate gave the press, which knew it had done less reporting on that issue than it should have until recently, the hook to write about it, at which point it compensated or overcompensated for its prior quietude, and 4) Democrats who wanted Biden out of the race then pushed the story hard, and pushback, also from Democrats, created the sense of conflict that generates news coverage. Republicans may have been gleeful spectators, but that's all they were. (The press should refocus on Trump's age and fitness. But one should remember in fairness that it ran a slew of those stories between 2019 and 2021, often more poorly sourced and speculative than the Biden age stories.) And they wrote about Trump showing grit in the moments after being shot not because Republicans encouraged them to do so but because it was also a hell of a story. (They wrote a lot of nonsense after that, but I think most of the nonsense was self-generated, as well as being drawn from the press's current, poisonous, bottomless well of a reporting resource: Twitter.)

I also do not think that the approach pushed by critics of the old-fashioned press approach makes for more accuracy. I anything, I think it is even more likely to result in blatant partiality. (For some, the idea is that at least the partiality will be more visible in the reporting. Whether that's so or not, my concern is that the reporting will simply be worse--that it will result in some stories being poorly done and others being missed altogether.)  

Finally, I see no evidence that the press's move, both a conscious one and a symptom of generational change, away from "objectivity" and toward something else after 2016, encouraged by folks such as Lowery, had much effect at all on the Trump presidency, the 2020 election, public opinion, or anything else. And in the long run, I doubt that the current sweetheart coverage it is now giving Harris, or the later negative narratives it will run with for some period of time as it overcompensates for its current puffery, or the more critical reporting it will devote to Trump and Vance to please subscribers (it turns out that big corporate advertisers did more to benefit journalism than to harm it; the subscriber model will kill journalism in the act of trying to save it) and out of "fear of accusations of bias," will have much effect either. The press, like the president who was at a standstill in the polls and leaking support in every direction, has done plenty of pushing of the "accurate Democratic argument that Trump is an authoritarian who undermines and threatens the constitutional order" between 2016 and today. I tend to find many of the facts underlying that argument--although we should use the correct label: it's not an argument; it is, in fact, another narrative--largely accurate and newsworthy and therefore worthy of reporting. But simply trumpeting it, as critics like Sullivan thought and think we should at every opportunity, turns out to be an essentially empty exercise if the assumption is that simply repeating the phrase frequently will somehow change things. When Trump, or any candidate or public official, lies, the press should report that fact clearly. When he says something authoritarian, the press should likewise report it. But the idea that it makes a difference, to either change in the world or better journalism, whether its headline uses the word "authoritarian" or not, is a fallacy. Again, this is not what Howard wrote. But I think it's a fair characterization of what Rosen and Sullivan believe. I think they genuinely believe that putting the word in the headline will ward off authoritarianism, and that every time they are proved wrong they take this as evidence that the press should put the word in the headline even more often. In their Escher-like views and enthusiasm, they are impervious to refutation. 

And, perhaps somewhat contra Howard, I think that belief, and the associated belief that the press must adopt a new approach, does indeed lead not to more accurate reporting but to ignoring or suppressing genuine news--it encourages "not reporting" as well as "accurately reporting." The press did adopt a new approach after 2016--not to the extent that Rosen or Sullivan wanted, and certainly not as much as Democratic operatives wanted, but the changes, and the pressure to do so from within and without, were obvious. The result was some missed or underplayed stories, some unforced errors, a momentary increase in subscribers, and nothing else. It turns out that the way to fight authoritarianism is to get out there and fight authoritarians in one's capacity as a citizen, not to change journalism (or art, or academic writing, or any other specialized, professional, or avocational activity). 

Of course all of these things can be debated and much of the debate will turn on perspective. People who mistakenly think the press is, more or less literally, a wholly owned subsidiary of the Democratic Party will evaluate the evidence one way, and people who think (rather incredibly) that Maggie Haberman personally loves Donald Trump will evaluate it another way. I suspect, but not with complete certainty, that my disagreement with Howard can be put down to three things. 1) I think the critics he cites are awful. 2) I think we have different views of the role and value of "objectivity" in professional journalism. 3) I think we probably have different views about whether an "emergency" is a sound reason for changing fundamental practices in journalism or not. I may be wrong. And even if I'm right that leaves a lot of room for agreement on particular issues, as well as disagreement about how to characterize particular moves on the part of the press. But I think that's the core of where we part ways. 

I should add that I think Howard's views are more popular than mine, and in many cases more popular within the press itself. I just think they are wrong, if not in every particular then in the general tendency. Our main social and political crisis is an institutional crisis. It does not demand wholesale change to, or abandonment of, those institutions. It demands a firm re-commitment to them, and to their standard practices. Although I see this as demand as requiring activity and energy, my position may also seem to put me on the side of staidness, conventionality, and quietism. I'm pretty content with that. In my view, the changes we have seen in the profession in the past few years, that a new generation of "journalists" (many of whom do more commentary than actual reporting) have demanded, and that critics like Rosen and Sullivan and others are urging, will do little to combat authoritarianism. I fear that instead, those changes will ultimately result in a further drop in public trust in journalism, a decrease in the quality of the work done by that institution, and the further and perhaps final financial collapse of the institutional press. I doubt all my fears will be realized. But I think the best way to forestall those eventualities is for the press to refocus on doing its job in a fairly conventional, old-fashioned, and admittedly imperfect and aspirational way.  

"...disinclined to listen to media professors...."

I tend not to see eye to eye with my friend and co-blogger Howard on press issues, perhaps because we went to competing journalism schools, both of which, as journalism programs go, are very fine. (Mine was better. At least it used to be. Now that it offers master's degrees and doctorates instead of overpriced but excellent meat-and-potatoes training, it may be much worse.) That's okay! Marketplace of ideas and all that. But because he recently cited Jay Rosen, a non-journalist press critic who has had the misfortune to become a popular online commentator (online popularity being a recipe for ego and hubris), I thought I would share this recent Substack piece, by Mike Pesca, an actual journalist. Examining recent events, the piece quite rightly argues that Rosen is--once again--wrong in his position on how the press should cover the election and specifically former president Trump's candidacy, and likely to remain wrong by retaining and repeating the same mistaken position, no matter the evidence and without much sign of the capacity to acknowledge errors or reexamine his positions. Pesca also notes the endless wrongness of Margaret Sullivan, formerly a high-ranking journalist before becoming the last and worst of the New York Times's public editors; she has since enjoyed sinecures at the Washington Post and the Guardian and also, alas, teaches at my alma mater journalism school. 

Press criticism can be a valuable and necessary thing. (Among other things, it is useful in contextualizing the increasingly negative view the Supreme Court may hold of the press and why there may be actual reasons that its members, along with large numbers of the public, are more likely today than in past years to view it "in a negative light.") On the other hand, as Thor would say, as press critics Rosen and Sullivan are just the worst. (Tom Nichols, also mentioned by Wasserman, has been an interesting writer from time to time but is not much better.) As Pesca notes, most sensible working journalists will simply ignore them--Rosen because he's wrong and not a journalist and Sullivan because, well, because she's awful. This is an excellent approach for non-journalists as well. 

"I'd Give it a...."

It is possible I've offered a complaint about quotes by law professors awarding low hypothetical "grades" to various opinions and statements before. But it's an evergreen topic and, every now and then, several examples will catch my eye. Law professors, who purport to hate and groan through the grading process, nevertheless seem to have a strong attachment to handing out "grades" to judges and their opinions. I mostly avoid Twitter nowadays, but my recollection is that there are some noteworthy law professors there who have handed out thousands grades in their teaching careers, and almost as many hypothetical grades. I have never entirely understood the lure of this habit; as I say, my understanding was that professors hate grading. But it must stop. 

One oddity of these "grades" is that the opinions they are awarded to are substantially worked on by law clerks. These clerks have already, ex hypothesi, received As like candy on Halloween, and were praised by their mentors to anyone who asked as the smartest young lawyer since Brandeis. And they are working on team-production opinions with other law clerks and with their judges in a period where, at least on the Supreme Court, the number of decided cases is low and the length and technical detail of the opinions high. I may disagree--and in the case of, say, many of the writings of individual Fifth Circuit judges, violently disagree--with some or many of those opinions. But as a "grader," I am inclined to say that the quality of modern judicial opinions is very high. In technical respects, it is higher than the quality of opinions written during the periods when some of the graders were clerking. The low grades that are suddenly so freely handed out to former A students are silly. (That's a judgment of quality along certain lines, I should add. As a reader, and for other reasons, I would gladly trade completeness and sheer technical skill for brevity and sharpness of thought and language, along Holmesian lines. But there was only one Holmes, and in any event that is not the prevailing style. I would add that while I think the quality of lower court opinions is also high, in part because the clerk selection process has become such a big affair, there are lower court judges for whom the opportunity to score points or use cute Internet-ish language trumps, so to speak, quality in writing. Again, the Fifth Circuit springs to mind.) 

 

Another is that judges on apex courts (and on lower courts, sometimes because they have no choice and sometimes because they're eager to do so) don't simply stand still; they move the law. This is a rough fit for grading by law professors, many of whom want students not only to regurgitate the law as they were taught it, but to repeat and flatter the views of the grading professor. (I try not to be one of those professors. I'm pretty sure I succeed. But, on information and belief, they're out there.) Professors who grade opinions of this sort, which is many of them, and who grade in the manner that they do, are especially liable to be affected by their priors. An opinion that moves or manipulates existing law is, I would guess, more likely to be excoriated as, heaven forfend, a "C" effort when the movement and manipulation is, in the professor's view, running in the wrong direction. 

 

More important still are two other factors. First, at least based on what I have seen of grading at six different law schools, it takes hard, hard work to get a genuinely low grade. Of course it does happen, including to some of my students, and some of them a) have good reasons and b) become great lawyers. But genuinely low grades are nevertheless far from the norm. Some law schools—I generally think of them as opportunity schools, and have taught at one--​ demand a given number of lower grades, so that they can identify and remove some of the low-performing students they took a chance on, and whose first-year tuition payments they were happy to cash. But most law schools and all first-tier schools dislike low grades. At those schools, it's very hard to get in and even harder to get out--that is, even harder to manage not to graduate. They have a generous curve, tending to a B+ median or, somehow, higher. Given the difficulty of writing something coherent in three hours while artificially highlighting the points the professor wants to see, and given general declines in writing skill, even a B+ exam can be less than impressive as a reading experience. (I'm not sure I'd like to go back and reread even some of my A exams.) And for some types of class, the curve is either higher still or nonexistent. If the exam or paper was written for a small-enrollment class that doesn't require a curve, most professors, both because they like awarding high grades and because they know the effects of low grades in seminars on future enrollment in that class, are as generous as they can manage without hearing from the associate dean or registrar. Grade inflation is alive and well at most law schools and, despite occasional efforts to address it, thriving like a tropical jungle at the elite schools.

 

Second is the sheer hubris involved. That hubris embraces the hypothetical grade awarded, the grading skills of the person awarding the hypothetical grade, and the grader's confidence in him- or herself, his or her position, and the shimmer of authority, expertise, correctness, finality of judgment, gatekeeping, influence, etc. that surrounds the very idea of handing out a "grade." Academic expertise and its importance are real. So is the self-love of the academic expert, the overestimation of the scope of that expertise, its misapplication, and the expert's belief that his or her public bouquets and brickbats matter. 

 

One option is simply to say things like, "I think it's a bad opinion" or "I think the judge's view is wrong." It's not very quotable, but it is a sensible approach. But if we are going to insist on continuing to hand out hypothetical grades, I'd like to see us be more honest about our grading practices and more humble about the thing we are "grading." A sound and probably accurate statement would run more like this: "If this opinion were one of my students' exams, I'd give it--let's face it, I'd give it an A, or at worst an A-. I hate it anyway."     

The Core Crisis of Our Time is an Institutional Crisis, pt. MMDCLIX

Also in anti-institutionalist news, this forthcoming book attributed to Kevin Roberts, head of the Heritage Foundation, a sometime Washington think tank, with an introduction attributed to J.D. Vance. (There are occasions where I think the listing of an author is true-to-fact, and occasions--say, judicial opinions, Ivy League admissions essays, and celebrity autobiographies--where one should avoid making a firm assumption to that effect. This is one of the latter occasions.) It is currently titled Dawn's Early Light: Taking Back Washington to Save America. The book's description suggests that "Washington" (and possibly also "America") should be understood here as more of a placeholder, given the number of institutions outside of Washington that it wishes to "take back." Its salvific vision is straight out of the Battle of Bến Tre:

Chapter by chapter, it identifies institutions that conservatives need to build, others that we need to take back, and more still that are too corrupt to save: Ivy League colleges, the FBI, the New York Times, the National Institute of Allergy and Infectious Diseases, the Department of Education, BlackRock, the Bill and Melinda Gates Foundation, the National Endowment for Democracy, to name a few.

I have had interesting discussions with interesting and thoughtful conservative friends who despair of various institutions, although in my view some of their despair is overly pessimistic, or reasonably pessimistic but overly operatic. (In many instances, I have had interesting discussions with similarly thoughtful liberal friends who despair of the same institutions, generally for the same reasons.) I haven't read the book, so I'm going out on a limb here, but I don't think this book is a gateway to such conversations. If the description holds, it seems to have far more in common with those on the left whom I have criticized for taking a view of institutions that purports to be critical or reformist but is ultimately either destructive of or fundamentally indifferent to them. In any event, since my examples of anti-institutionalism generally focus on the left, given that my home institution is the academy, I offer this prominent example as a reminder, as much to myself as others, that the phenomenon is best defined as a social and not, in the colloquial sense, a political one. (May I add, despite being a big fan of capitalism and a frequent bore on the topic of everyday, small-c corruption being more important than large-C "Corruption," that anyone who makes $600,000 as the head of a former think tank should go easy on the phrase "too corrupt to save.")

Of obvious note to a) the presidential election, b) my location of the book in, as academics these days would say, an anti-institutionalist "space," and c) the general cravenness of authors, publishers, and politicians: the book until recently had the charming subtitle "Burning Down Washington to Save America."  

Law Schools and State Court Clerkships

Although I get its emails, I don't read Above the Law, haven't for years (probably since before David Lat's departure), and can't imagine why anyone would. But I offer sincere credit where it's due: my generally-ignored email from that site tells me it is publicizing a list of law schools that are the most active and successful in securing state court clerkships. Kudos to author Staci Zaretsky for her post. (It doesn't change my mind about the truism that the post-Lat site is dreadful.) The schools at the top of the list, from Princeton Review, are

1. Seton Hall University School of Law (no change)
2. Rutgers School of Law (no change)
3. University of Maryland Francis King Carey School of Law (ranked #4 last year)
4. Widener University Delaware Law School (ranked #7 last year)
5. Vermont Law and Graduate School (unranked last year)
6. University of Hawaii at Manoa William S. Richardson School of Law (ranked #8 last year)
7. Drexel University Thomas R. Kline School of Law (ranked #3 last year)
8. University of St. Thomas School of Law (MN) (ranked #5 last year)
9. University of Minnesota – Law School (ranked #10 last year)
10. University of Montana School of Law (unranked last year)

One notes that: 1) none of these schools are the vaunted "prestige" schools; 2) federal clerkships confer more status and prestige on their recipients (and on the schools that are successful in placing federal clerks) than state court clerkships; and 3) in my view, state court clerkships may well be more important and can offer better training in more areas of law than federal court clerkships.

Of course the third point is debatable. To the extent that it is true, however, that suggests that (4) prestigious law schools, despite the verbiage, are less interested in sending their graduates places that provide the greatest potential for being "change agents" tout court. Rather, they, and the vast array of professors, commentators, advice networks, and so on that steer people to federal clerkships for ostensibly non-crass, social-change-oriented reasons, are interested in jobs that achieve such goals provided that those jobs also confer a sufficient amount of status and prestige. Professors who are happy to talk about how it is a scandal that law schools don't teach more state constitutional law, how much action there is in state constitutional law, how state supreme courts can serve as a bulwark for rights against conservative federal courts, and so on would nevertheless be aghast at the idea of steering their best and brightest toward state supreme courts rather than federal district or appellate courts. In the British gentlemen's phrase, it just isn't done. And the process becomes self-reinforcing. In faculty hiring, for instance, we all treat federal court clerkships as proxies for the quality or promise of the candidate, even where the candidate's interest is in an area of law that is mostly dealt with in state courts, because they generally are a proxy for various achievements.

As Vonnegut would say, so it goes.  

P.S.: In fairness, let me add a note from a correspondent, who suggests that because it is harder to form pipelines from state court clerkships to firm jobs, post-clerkship outcomes, rather than prestige, may be a big part of where law schools focus their efforts. I take the point, and take it as a critique (although it was offered in a warm and collegial fashion) rather than calling it a friendly amendment or something of the sort. I suppose I'd say on the one hand that I think the point certainly can explain and justify rational choices on the part of applicants and schools, and on the other that, just as I'm not sure that firms' disproportionate focus on graduates of a small number of schools, even as against top students at other schools, is entirely rational or that immurement in prestige as such has nothing to do with it, so I'm not entirely sure it makes sense that federal clerkships are prized more highly than state court clerkships by firms, to an extent that then drives other actions within the larger ecosystem.  

Two Notes on Gerontocracy

First, I remain convinced that the most interesting and valuable piece of legal scholarship in American constitutional law I have read in the past year or two is Sam Moyn's piece on gerontocracy in Granta, "The Trouble With Old Men." This despite because of the fact that it a) mentions Hesiod, James Frazer, and the regrettable lack of mandatory retirement in American universities more frequently than it does the United States Constitution, which is mentioned exactly zero times, and b) is not published in a law review. 

Second, and with essentially no hope at all, I would say that for anyone who is serious about Supreme Court term limits for other than uninteresting short-term reasons, this--the season of Biden, Ginsburg, Trump, and Feinstein (to mention only those whose age has been or come close to front and center)--is about as good a time as one is likely to get to make some progress, 22nd Amendment-style, on a bundled, prospectively oriented constitutional amendment that provides both reasonable term limits on the Court and reasonable age limits in the executive and legislative branches.  Even if one doesn’t change the lower age limit, it seems to me that 30 years (if one sets the upper limit at 65) is a pretty substantial window of opportunity in which to seek and take one’s opportunity to run for the presidency. (For what it’s worth, I felt the same way in 2016 and 2020 and considered it somewhere between questionable and dishonorable for a number of candidates in both parties, including Trump, Clinton, and Biden, as well as Sanders and Warren, to seek the office. Offices are not entitlements, and the possibility that the vagaries of time and chance might cause a particular politician to miss his or her shot should bother no one except for the politician. Nor was there any adequate excuse, even during wartime, for Roosevelt to make virtually a deathbed run for a fourth term.)

A Serious Issue, Unseriously Reported

As Paul Caron notes, Inside Higher Education has an article suggesting that Columbia law professor Katherine Franke faces potential dismissal by her university. If she were dismissed or seriously disciplined for the statements that apparently are the focus here, statements that I find rather silly, that would be a cause for serious alarm and objection. Whatever one thinks of what she said, it is not proper cause for academic dismissal. Those who are concerned to protect academic freedom should watch vigilantly.

That said, may I note that the article is so poor that it cannot possibly count as a serious and reliable account. (It is also dismally written. I don't know whether the fault is the reporter's or the editors'. Wherever the fault lies, something went very wrong for the lede to be relegated to the thirteenth paragraph.) Despite a mild genuflection toward the idea of seeking comment elsewhere, it is essentially a single-source story, that source being Prof. Franke, and it mostly simply retails her own arguments and complaints. The idea that she may be fired--something that should not happen, based on what is presented here, and that I would of course oppose--is based wholly on this statement: "The university did send a copy of its Office of Equal Opportunity and Affirmative Action policies, which include termination as one of multiple possible sanctions for alleged discrimination and harassment. Franke says her lawyer has told her she has a 50-50 chance of being fired." I am not sure I would take a list of sanctions that includes dismissal as strong evidence of what will actually happen, and I am disinclined to give much weight to a second-hand report of a lawyer's probability estimate.

At the risk of tiresome repetition, I would oppose such an outcome. But neither this story, nor a story published--on the very the same day--by The Intercept, which is better written and better done but otherwise mostly identical in its substance and sourcing, should yet be taken as serious indicators of what is to come. I was not a journalist for very long, although I was glad to learn a few journalism skills at the university at which Prof. Franke teaches. But from that perspective, and especially given their overlap, both stories seem closer to transcription or to a PR campaign than to serious independent journalism.  

Hmmm….

Any present or former journalist, or anyone who has written an op-ed or essay for a general interest publication, knows that editors are keen on compelling openings that suggest to the reader the immense importance of the topic. (Law reviews increasingly demand the same, for roughly the same reason: the authors are trying to captivate student editors who are a short step above being general readers themselves.)

It’s an understandable practice. But it carries with it tremendous temptations to exaggerate, mythologize, or pay implicit tribute to Harry Frankfurt. So we come to the first paragraph of this essay in the online spaces of the midbrow conservative “public intellectual” publication City Journal. I have to wonder: Does anyone really think that anything in this paragraph after the first six words is true? Does the author, a law school graduate, really think so? I just can't see how.   

Hardly anyone reads law review articles, but those who do are among the most influential readers in the country. Supreme Court justices and federal and state judges rely on academic theories to decide important cases and to set the legal doctrines that shape American life. Professors shape their students’ worldviews by assigning articles appearing in prestigious journals to show that they are authoritative—the law equivalent of peer-reviewed. Though these journals are student-run and -edited, they often legitimize the ideas that become law and common knowledge.

U. of Alabama Law Seeking Assistant Dean of Public Interest Law/Assistant Professor of Law in Residence

My lovely law school, the University of Alabama School of Law, is seeking an Assistant Dean of Public Interest Law, who also will be Assistant Professor of Law in Residence. From the job search portal, a brief description: "The Assistant Dean will manage the organization, planning, and operations of the Public Interest Institute of the Law School. The Assistant Dean will also teach Public Interest Lawyering and other related courses."

I encourage folks to apply or to spread the news to others who might be interested. For what it's worth, whoever is fortunate to get the job will find that we have a substantial population of law students who are deeply interested in and committed to public interest law and our public interest program. The Law School offers a Public Interest Certificate to students who have demonstrated their commitment to public interest law through hard work in clinics, courses, and community service, and every year the number of students graduating with a public interest certificate grows. You'll also find that our relatively low tuition makes the school attractive to those students precisely because upon graduation, they are much freer to take up a job in or around public interest work. In short, you'll have the pleasure of working with a very serious, enthusiastic group at a law school with a deep student and institutional commitment to public interest work.  

There's a job portal with a longer description of the job and how to apply. Here it is: https://careers.ua.edu/jobs/assistant-dean-of-public-interest-law-and-assistant-professor-of-law-in-residence-523889-tuscaloosa-alabama-united-states. If you have any serious questions about the school or about living here, feel free to email me.  

On Judicial Ethics and "corruption:" Celebs, Authors, and Medicis

In a pair of posts at the VC, Josh Blackman raises some valuable questions about modern judicial ethics. I think of them as follows: 1) Are books and book contracts for Supreme Court justices unethical? 1a) Are they corrupt? 2) Are gifts to justices unethical? 2a) Are they corrupt? 3) Are standard-issue versions of the examples of (1) and (2) no different from, or even worse than, a 26-year trail of lavishly generous patronage from real or ostensible "friends," from a legal-ethical or general-ethical perspective?  

As you can see, I tend to think of this general topic in terms of two separate categories: what is unethical in a formal legal-professional sense, and what is dishonorable or corrupt. I mean "corrupt" in the small-c sense not of acting for gain, but of moral debasement, degradation, or decline. I think it's a mistake for lawyers to treat every moral and ethical issue as a legal one, and for interest groups to publicize every act of alleged corruption as if it necessarily has some legal consequence--and, conversely, to call it a "nothing-burger" if it doesn't. The question whether a judge should recuse is relatively uninteresting to me, and the "scandal"-based arguments for recusal or punishment are often unpersuasive and, from a systemic perspective, unwise or ill-thought-out. The question whether office-holders or people with power have lost what George Washington called "a proper Sense of Honor," on the other hand, I find both interesting and crucial. that sort of quotidian corruption is, after all, the ordinary state of affairs in politics and political advocacy, and the effects of everyday small-c corruption are far more pervasive, routine, and damaging than legally unethical or criminal behavior. Corruption in this sense is also more interesting because it raises harder questions about how to participate in politics, how to live and behave in a corrupt world, what should and shouldn't be taken for granted, when and whether to respond in kind, what the going price of Wales is, and so on.

Talking about corruption in the small-c sense is admittedly harder to pin down, harder to address, and less likely to result in answers to the question what to do, although it is more conducive to asking the question "How shall I live?" It is also, perhaps, sometimes harder to face. Partisans, inside and outside of electoral politics and within both the for-profit and nonprofit sectors, are generally already soaking in it. If you already get your funding from Arabella Advisors or Leonard Leo and the Marble Freedom Trust or David Brock and his sponsors and vehicles, you are already steeped in small-c, often within-the-rules corruption. It's perhaps understandable that advocacy groups, which draw their water from the same well, would thus focus on what is actionably wrong rather than what is permitted but degrading. The greatest risk of such corruption is not so much that you will change your views or alter your life, but that you won't change a thing--just accept and entrench a dishonorable and dissatisfactory way of life, politics, and public and private morality. But this kind of corruption is still worth our attention--still worth, as it were, the continual effort to make it unfamiliar--even where it falls short of some code violation. 

From that perspective, I doubt that books or book advances present an ethical issue. Morally, perhaps the call is a little closer, given the size of book advances and, perhaps more importantly and interestingly, the niche nature of markets and the degree to which, in a polarized society, some presses (and judicial authors) are going to be thinking more about how a book should be tailored to one side of the usual divide or the other rather than seeking a general audience. My sense of the question is perhaps affected by my view that some judges--Posner, Scalia, Friendly, and others--have published books whose absence would be a loss, and so one doesn't want to disincentivize their creation. The Code of Judicial Conduct agrees. The reason I see a moral flipside is that the books most likely to earn a substantial advance are not the deep dives, but books that simply mouth platitudes or memoirs. Despite the fact that some judges obviously have interesting stories to tell, the memoirs that get larger advances generally trade off of the judge's status as a celebrity or as an idol to the right or left. Others may be keener on such projects insofar as they bridge the gap with the general public. But it is easy for such books to be not a general bridge-building effort but more of a targeted liberal or conservative project. Is that really a worthy supplement to an already-sufficient income?

On gifts, my loose read of the general approach is that we take a liberal view of gifts that are either truly personal, fundamentally trivial, or commensurate with the circumstances--both the occasion and the relationship--while requiring reporting in other circumstances to allow parties the opportunity to judge for themselves whether and when they might raise questions about the judge's impartiality in particular matters. Most of the time, that is sufficient. But a factor perhaps less accounted for is the celebrity status of a Supreme Court justice. That status can contribute to a small-c corruption, in which the justice receives gifts because of who he or she is as a general public figure, or as a prominent figure in the political divide. The gift may be of trivial value to the giver; but it can still tempt the judge to enjoy that celebrity status too much, or to become too much accustomed to access to special velvet-rope privileges handed to them because of the office they occupy. Judges are not special; judicial office is special. When those gifts accrue to the person and not the office, an air of entitlement or unearned privilege can develop. 

In that sense, one might justly be uneasy about things like Justice Jackson's gift of precious and expensive Beyonce tickets, the subject of Josh's second post. I'm not quite sure how to read that post, because some of it may be deliberately parodic. Of course no sensible person treats a quip based on song titles as actually intended to sell Beyonce records, or thinks Beyonce was seeking to curry influence with Justice Jackson; I therefore assume that Josh's comments on that score were intended to be humorous. But that doesn't make such gifts unproblematic. The problem with them, as I've suggested, is not that they involve a quid pro quo or something of the sort, but that there is something unseemly about even duly-reported generosity of this sort when it permits judges or justice to take for granted a celebrity or elite lifestyle that would otherwise be unavailable to them. It's the kind of generosity one enjoys by virtue of being a celebrity, not a judge, and a judge should avoid that celebrity status even if it means rejecting the fruits. (Even though these are legal events, I feel the same way about justices speaking at fancy ACS or FedSoc events--not that donning evening wear to listen to a justice make light jokes over the dessert course can hold appeal to anyone.) If you wouldn't get in to a concert or be able to afford the tickets otherwise, you shouldn't do so because you've become famous or notorious or adored by virtue of the robes you wear or the publicity your confirmation generated. 

Does that make such a gift as bad or worse than a 26-year record of lavish gifts and quasi-loans extending to motor homes, Lifestyles of the Rich and Famous junkets, tuition, and antique Bibles, real estate purchases, and the lavishing of lavish similar attentions on the justice's spouse? Well, of course not. Others may argue about their legality or consequences for recusal in individual cases. I'm less interested in the legal question than in its corruption and corrupting nature, in the small-c sense. I don't know whether, as Josh writes, "no one doubts that [Justice Thomas] and Harlan Crow are genuine friends." I'm also not sure why he is firm about a friendship that developed after Thomas attained his lofty status, while doubting that Justice Jackson could be "genuine friends" with Oprah or Beyonce. Isn't the question in both cases whether the relationship, even if genuine, was a product of Jackson (or Thomas) being a famous, and perhaps also a politically sympatico, judge? If Oprah wanted to meet Jackson because of her status or politics, hit it off with her, and then chose to spend the rest of her life lavishing gifts on her, giving Jackson a lifestyle she otherwise couldn't hope for, wouldn't accepting that generosity be corrupt even if they had developed a "genuine" relationship? If a judge or justice wants to get rich and enjoy the lifestyle of a rich person, isn't the answer to quit the bench and try his or her luck as a capitalist? And if the alternative is to enjoy the office and status of a judge while merely subsisting as a member of the ten percent, is that really a hardship or sacrifice?

At the moment, all one can say of Justice Jackson is that she received concert tickets--tickets she ought to have turned down, in my view--and duly and promptly reported them, without unfortunate bouts of forgetfulness, obfuscation, or amendment. By contrast, Justice Thomas seems to have treated the later-acquired friendship of a politically sympathetic plutocrat as a pleasant opportunity to live a part-time plutocratic life himself. I imagine he could have forced himself to enjoy a deep "kinship and connection" with Harlan Crow that did not involve the Bohemian grove, jaunts to Bali and other luxury outings, Frederick Douglass's Bible, and so on.

I would suggest that the legalistic frame leads us to focus on the wrong things--whether a real friendship exists, whether any votes will change, even how such a relationship will be perceived. A look further back in history suggests the more accurate way to think about this relationship. Whether a friendship exists or not, this is a three-decade relationship of patronage. Justice Thomas has allowed his friend or friends to serve, Medici-like, as a patron or patrons, enabling him to live in the lifestyle that he may mistakenly think a Supreme Court justice, or just he in particular, should receive as a matter of dessert. (This was Justice Fortas's malady as well.) But this isn't quattrocento Florence, and I can't help but see that patronage relationship as fundamentally unseemly and corrupt even if they also enjoy a true and deep friendship. It's as simple as the old British phrase: It just isn't done. A justice deserves no lifestyle in particular, other than the one his or her generous salary will afford, and should retain the good plain common sense to know it. To allow oneself to become accustomed to live otherwise is surely corrupt in the small-c sense.