The SCOTUS Decision

I wanted to commend Amy Howe’s post at SCOTUSBlog on Trump v. United States to your attention. Here’s a snippet:

In a ruling on the last day before the Supreme Court’s summer recess, and just over two months after the oral argument, a majority of the court rejected the D.C. Circuit’s reasoning. As an initial matter, Roberts explained in his 43-page ruling, presidents have absolute immunity for their official acts when those acts relate to the core powers granted to them by the Constitution – for example, the power to issue pardons, veto legislation, recognize ambassadors, and make appointments.

That absolute immunity does not extend to the president’s other official acts, however. In those cases, Roberts reasoned, a president cannot be charged unless, at the very least, prosecutors can show that bringing such charges would not threaten the power and functioning of the executive branch. And there is no immunity for a president’s unofficial acts.

Determining which acts are official and which are unofficial “can be difficult,” Roberts conceded. He emphasized that the immunity that the court recognizes in its ruling on Monday takes a broad view of what constitutes a president’s “official responsibilities,” “covering actions so long as they are not manifestly or palpably beyond his authority.” In conducting the official/unofficial inquiry, Roberts added, courts cannot consider the president’s motives, nor can they designate an act as unofficial simply because it allegedly violates the law.

Turning to some of the specific allegations against Trump, the majority ruled that Trump cannot be prosecuted for his alleged efforts to “leverage the Justice Department’s power and authority to convince certain States to replace their legitimate electors with Trump’s fraudulent slates of electors.”

With regard to the allegation that Trump attempted to pressure his former vice president, Mike Pence, in his role as president of the senate, to reject the states’ electoral votes or send them back to state legislatures, the court deemed Trump “presumptively immune” from prosecution on the theory that the president and vice president are acting officially when they discuss their official responsibilities. On the other hand, Roberts observed, the vice president’s role as president of the senate is not an executive branch role. The court therefore left it for the district court to decide whether prosecuting Trump for this conduct would intrude on the power and operation of the executive branch.

The court did the same for the allegations in the indictment regarding Trump’s interactions with private individuals and state officials, attempting to convince them to change electoral votes in his favor, as well as Trump’s tweets leading up to the Jan. 6 attacks and his speech on the Ellipse that day. Making this determination, Roberts wrote, will require “a close analysis of the indictment’s extensive and interrelated allegations.”

I honestly don’t know what to think about the decision. I’ve scanned both the majority decision, the concurrences, and the dissents. To my eye both the majority and the dissent were emphasizing policy over the law which I emphatically do not believe is the job of the Supreme Court in this or any other matter.

I’ve been preparing a post on recent Supreme Court decisions, some of which have been quite significant in their implications, for some time. In thinking about these decisions I think there are two distinct issues:

  1. Did they get the law right?
  2. Are the majority or the dissent or both making policy rather than determining what the law is?

Most of the commentary I have seen talks almost exclusively about the policy but IMO policy is not the province of the courts—the law is. If you have a problem with the policy, your problem is with the Congress.

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The Scorecard (Updated)

As of this writing the editors of the New York Times, Washington Post, Wall Street Journal, Chicago Tribune, and the Atlanta Journal-Constitution have called for President Joe Biden to end his re-election campaign. Others have called for Donald Trump to end his campaign. Columnists from across the political spectrum have called for President Biden to withdraw. Everything is proceeding largely as I predicted. I wish they would both terminate their campaigns. However, I am accustomed to not getting what I want.

The Biden campaign’s reaction reminds me of nothing so much as this sequence from the 1967 movie, Guide for the Married Man:

Frankly, as many have pointed out before me, I doubt that trying to convince people they did not see what they saw will be a winning strategy.

Update

Mike Allen and Jim VanderHei have a good post at Axios summing up the Biden campaign’s counterstategy. My favorite passage from it is this:

“You guys don’t get to decide,” a source close to Biden said, referring to high-profile Democrats now second-guessing Biden as nominee. “That’s not how this works. We don’t have smoke-filled rooms.”

No, we have smoke-filled “family gatherings”. There’s all the difference in the world. Especially when the family recognizes that their livelihoods depend on Joe Biden staying in office as long as possible.

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What Should Happen and Why It Won’t

In my first post this morning I presented a round-up of opinions on last night’s debate. In this post I’d like to describe what I think should happen and why I don’t think it will. In preface I want to give a preemptive responses to those who will just deny what we saw last night. Telling people they didn’t see what they saw is not the way that Democrats should respond to what we saw. That reminds me of nothing so much as the Monty Python “Dead Parrot” sketch. “He’s just stunned”. “He’s pining for the fjords”.

I think that Tom Friedman (quoted in the cited post) has it right. The president should be persuaded to withdraw his name from nomination, release his delegates, and the party’s presidential nominee should be decided at the convention. When was the last time that happened? 1972? I’ve heard a number of contenders mentioned including Vice President Kamala Harris, Michelle Obama, Hillary Clinton, and California Gov. Gavin Newsom, just to name four.

There are many reasons I don’t think it will happen including that it’s unprecedented, no Plan B, risky.

Has any incumbent ever withdrawn his name from candidacy just before the convention? LBJ withdrew his name in March 1968. That’s why I say it’s unprecedented.

President Biden has no Plan B and, apparently, neither does the Democratic Party. If Mr. Biden doesn’t run, it is likely to ruin not just him but his whole family. That’s a pretty big risk. He believes he can and will win. That’s the nature of politicians. They always think they can win. And Mr. Biden needs to withdraw. If there’s a public move to dump Biden at this late date, the party leadership will be placed in a very difficult position. They won’t accept that.

As to the risk, George McGovern lost in 1972. That’s enough to illustrate the risks of an open convention.

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First Presidential Debate 2024 (Updated)

As promised we watched the debate last night. My wife summed it up pretty well: “We need to open a new can of candidates”. Trump was Trump—malignant narcissist and braggart. The most, the greatest, the best, etc., slathered in the spray tan or whatever it is that makes his skin that color. Biden was feeble, halting, lost the thread of what he was saying, contradicted himself, and committed gaffe after gaffe. It was not a pretty sight.

New York Times: “God help us”. Here’s their visual summary of their opinion writers’ take:

Washington Post: “Ninety minutes of pain: In debate Biden mumbled while Trump ranted”.

Wall Street Journal: “Democrats Can’t Avoid the Biden Problem”.

Well, that was painful—for the United States. President Biden’s halting, stumbling debate performance Thursday night showed all too clearly that he isn’t up to serving four more years in office. For the good of the country, more even than their party, Democrats have some hard thinking to do about whether they need to replace him at the top of their ticket.

This isn’t a partisan thought; it’s a patriotic one. Democrats across the country were privately saying the same thing last night, and some of them on TV not so privately. Mr. Biden lost the debate in the first 10 minutes as he failed to speak clearly, did so in a weak voice, and sometimes couldn’t complete a coherent sentence. His blank stare when Donald Trump was speaking suggested a man who is struggling to recall what he has been prepped for weeks to say, but who no longer has the memory to do it.

This isn’t to say he didn’t score points against Mr. Trump now and again. He can still recall a line or a policy once in a while. But without a script provided by his aides, and without his usual teleprompter, the President looked and sounded lost. Voters already sensed this, which is why two-thirds have been saying for more than a year that they’d rather he not run again.

The President’s faltering effort allowed Mr. Trump to win the debate despite a mediocre performance in his own right. The former President was strong on inflation and the economy, where he knows he has an advantage. He rightly nailed Mr. Biden’s policies as the main inflation culprit.

Peggy Noonan at the Wall Street Journal:

It was in fact as consequential as any presidential debate in history, and the worst night for an incumbent in history. It was a total and unmitigated disaster for Mr. Biden. It was a rout for Mr. Trump. It wasn’t the kind of rout that says: If the election were held tomorrow Donald Trump would win. It was the kind of rout that says: If the election were held tomorrow Donald Trump would win in a landslide.

It is impossible to believe that the Democrats will continue with Mr. Biden as their presidential standard-bearer. They are going to have to do what they fear to do: make themselves uncomfortable, reveal their internal splits and brokenness, and admit what the rest of the country can see and has long seen, that Mr. Biden can’t do the job. They have to stop being the victim of his vanity and poor judgment, and of his family’s need, and get themselves a new nominee.

From the moment he shuffled out with a soft and faltering gait, you could see how much he has declined. He was pale and waxy, and there was something almost furtive in his gaze. His voice was hoarse and feathery, with no projection. His answers were scrambled, halting. At some points he made no sense. At some points he seemed out of it.

Mr. Trump came across as calm, sure-voiced, focused. His demeanor wasn’t insane. He was low-key but high-energy. He obeyed the rules, amazingly, to his benefit. He showed respect for the moderators. If not quite genial he was collected, and he offered a new tack on why he’s running: He didn’t want to, but Mr. Biden, unfortunately, is such a disaster that Mr. Trump has to come back and save the country. “His policies are so bad . . . he will drive us into World War III.” World leaders neither respect nor fear him.

In the split screen, when not talking, Mr. Biden’s face seemed to freeze, sometimes in unfortunate loose-jawed expressions.

Tom Friedman in the New York Times:

I watched the Biden-Trump debate alone in a Lisbon hotel room, and it made me weep. I cannot remember a more heartbreaking moment in American presidential campaign politics in my lifetime — precisely because of what it revealed: Joe Biden, a good man and a good president, has no business running for re-election. And Donald Trump, a malicious man and a petty president, has learned nothing and forgotten nothing. He is the same fire hose of lies he always was, obsessed with his grievances — nowhere close to what it will take for America to lead in the 21st century.

The Biden family and political team must gather quickly and have the hardest of conversations with the president, a conversation of love and clarity and resolve. To give America the greatest shot possible of deterring the Trump threat in November, the president has to come forward and declare that he will not be running for re-election and is releasing all of his delegates for the Democratic National Convention.

The Republican Party — if its leaders had an ounce of integrity — would demand the same, but it won’t, because they don’t. That makes it all the more important that Democrats put the country’s interests first and announce that a public process will begin for different Democratic candidates to compete for the nomination — town halls, debates, meetings with donors, you name it. Yes, it could be chaotic and messy when the Democratic convention starts on Aug. 19 in Chicago, but I think the Trump threat would be sufficiently grave that delegates could quickly rally around and nominate a consensus candidate.

I plan to update this with at least one more citation, from David Ignatius. I will also have another post giving my opinion.

Update

David Ignatius at the Washington Post: “President Biden should not run again in 2024”

What I admire most about President Biden is that in a polarized nation, he has governed from the center out, as he promised in his victory speech. With an unexpectedly steady hand, he passed some of the most important domestic legislation in recent decades. In foreign policy, he managed the delicate balance of helping Ukraine fight Russia without getting America itself into a war. In sum, he has been a successful and effective president.

But I don’t think Biden and Vice President Harris should run for reelection. It’s painful to say that, given my admiration for much of what they have accomplished. But if he and Harris campaign together in 2024, I think Biden risks undoing his greatest achievement — which was stopping Trump.

Biden wrote his political testament in his inaugural address: “When our days are through, our children and our children’s children will say of us: They gave their best, they did their duty, they healed a broken land.” Mr. President, maybe this is that moment when duty has been served.

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About Tonight’s Debate…

So, who plans to watch the debate tonight. I’m pretty sure my wife will insist that we watch it. Otherwise I would avoid it and read the commentaries tomorrow. I suspect it will be pretty painful.

I agree with one of the things they’ve said will be done wholeheartedly—when it’s one of the candidates turn to speak muting the mike of the other candidate. I think the presumption is that will affect Mr. Trump more than it will Mr. Biden. Who knows?

Other changes from past presidential candidates’ debate format include no opening statements and no studio audience. I honestly wish these events were actual formal debates.

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Backing Into a Corner

William Galston, a Democrat, uses his Wall Street Journal column to argue for fiscal prudence:

We’re backing ourselves into a fiscal corner. Annual outlays for Social Security will rise by about $1 trillion over the next decade, as will outlays for Medicare. But Mr. Trump has ruled out cuts to these programs, bringing his party into alignment with the Democrats’ longtime stance. Nor will Republicans accept tax increases. Meantime, projected defense spending falls far short of what will be necessary to protect the U.S. in an increasingly dangerous world. And there won’t be any room for additional domestic spending on young families with children. Taking the path of least resistance—increasing spending without increasing revenue—will make a bad fiscal situation worse.

Add to this that the U.S. is a rapidly aging society. Americans 65 and older made up 9% of the population in 1960. Today, this figure is 18%, and it’s projected to rise to 23% over the next three decades. As older Americans’ share of the electorate increases, so will the cost of guaranteeing them basic income and medical security. I doubt many elderly voters will rally around a fiscal strategy that reduces their benefits.

Continuing on our current fiscal course will mean a gradual loss of America’s financial independence followed by an abrupt economic decline. The U.S. will have to ask the rest of the world to finance its debt, and it’s reckless to assume that other nations will do so indefinitely. The risk is that countries the U.S. relies on will draw back gradually—and then suddenly, when some unforeseen shock crystallizes their mounting doubts. As the late economist Herb Stein quipped, “If something cannot go on forever, it will stop.”

We have to recognize the consequences of these realities and start taking steps to secure America’s fiscal future. Leaders with vision should address these issues realistically and make the case to the public that they must either pay for the programs they want or agree to cut them. Faced with this choice, I suspect that voters would support the higher taxes that are needed to stabilize Social Security and Medicare for decades to come, help families with young children, and defend the country against mounting threats.

All I can say to Mr. Galston is welcome back to the fight. I wish I knew our side will win.

Sadly, I think it very unlikely. Both Republicans and Democrats are addicted to free beer, they just take it in different forms. The Republicans take theirs in the form of tax cuts while the Democrats take theirs in the form of not curbing spending.

There are two things I have missed in the several columns and editorials I have read recently on our growing debt. The first is that there is empirical evidence that public debt overhang constrains the rate at which GDP can grow. The second is deadweight loss.

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What If…

In an op-ed in the Wall Street Journal Seth Cropsey declaims that war between Israel and Iran is inevitable:

Israel faces a strategic choice with regard to Iran—war now or war later. The political conditions for war now are poor. The strategic conditions later will only grow worse.

Iran’s goal is to destroy Israel as a uniquely Jewish state through a strategy of attrition. The mullahs hope to bind Israel in a series of conflicts and pressure it from multiple angles while using diplomacy and media manipulation to prolong the conflict. Tehran understands the potency of Israel’s military, which has adapted well to difficult urban and subterranean combat conditions in Gaza. The Israel Defense Forces field formidable air, artillery and armored units that, if unleashed in the north, would threaten the existence of Hezbollah, Iran’s most capable proxy. The Iranian deterrence strategy couples pressure on the U.S. with the threat of large-scale rocket and missile attacks against critical Israeli infrastructure.

Hamas is the most apparent element of Iran’s strategy. Iran wants the terrorist organization not only to maintain control of Gaza but to catapult itself into control of the Palestinian movement. The best way to do that is to compel the Israelis to accept a cosmetically appealing “peace agreement” involving the Arab states that allows Hamas to integrate into the Palestinian Authority and co-opt its necrotic rival, Fatah. The West Bank could then become another axis of pressure on Israel.

Here’s my hypothetical. If Iran attacks Israel, I think we should provide assistance to Israel similar to the aid we are providing to Ukraine and for the same reasons.

But what if Israel attacks Iran? What should we do then?

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Our New Policy

Is the Biden Administration’s abandoning of our policy of “strategic ambiguity” with respect to Taiwan good or bad and why?

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You Think We’ve Got Problems?

If you are concerned about American problems, you might consider reading this lament for France at Brussels Signal by Kevin Myers:

The most traditionally-French thing about modern France is its ability to conjure riots out of thin air: this time last year, in a single nation-wide eruption 2,000 cars were torched, 3,380 buildings set on fire, 220 towns and cities were swept with violence and 40,000 police were mobilised, with 250 of them being injured. Which is why the gendarmerie has banned fireworks during this summer’s national feast day, especially since the latest “festive” rockets can be fired horizontally at 100 km/hr.

Not Belfast: Bastille Day. Aux armes, citoyens!

I have been to Normandy on four occasions in the past two years. Each time was like visiting an old folk’s home as the residents slumbered their way to the grave. The last trip. the two of us, just off the ferry and searching Cherbourg for breakfast, finally found the only café that promised both coffee and baguettes (or so we thought).

The result was intrinsically Egyptian: the coffee tasted like the effluent from the Cairo fever hospital and the baguette was one of the “long-life” variety, this one apparently from the age of Tutankhamun and resembled a condom filled with wet sawdust ….well, I hope that’s what it was.

Thereafter, matters grew worse, like time-travelling to Poland in the 1960s. Even finding somewhere that served lunch would usually take at least an hour. One day we consumed an omelette that had apparently died after a long and painful illness, bravely borne, and sought consolation in two coffees. “Désolée, monsieur,” yawned the waitress [ed.: sorry, sir] through her tattooed hand. “Nous n’avons pas de café aujourd’hui. Demain peut-être?” [ed: We have no coffee today. Maybe tomorrow.]

Lunch the next day in a different café seemed to consist of road-kill on toast. The menu promised café au lait, which we asked for, it being a café. “Désolée, monsieur,” snuffled Waitress Mark Two through her nose-ring, “nous n’avons pas de lait aujourd’hui. Demain peut-être?” [ed.: We have no milk today, etc.]

No milk in Normandy? There was a supermarket two doors away. Travail is such travail in modern France.

Read the whole sad thing. I just received some photos from friends who live in Paris, one of the Seine. They’re planning to swim in that? They might be able to walk across it.

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It’s a Start

While I’m on the subject of Chicago politics Ed Burke, the longest-serving alderman in Chicago history, sometimes called “Chicago’s most powerful politician”, has been sentence to two years in prison, convicted of various charges of corruption. ABC 7 Chicago reports:

CHICAGO (WLS) — Ed Burke, once the most powerful Chicago alderman, was sentenced on corruption charges Monday at the Dirksen Federal Building.

Judge Virginia M. Kendall gave him a two-year prison sentence and $2 million fine.

The fine consists of $200,000 on count one and $150,000 on each of the remaining counts. The money will go toward the victims of Burke’s crimes.

My reaction: it’s a start. If every Chicago alderman who engaged in corrupt practices were tried and convicted, the City Council probably couldn’t get a quorum together. Now on to Mike Madigan who has been chairman of the Illinois Democratic Party for much of my lifetime. He, too, is facing trial on charges of corruption.

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