"The easiest way to explain why antisemitism is still with us is to blame religion."

"Scholars agree that what we call antisemitism today has its historical origins in a strain of anti-Jewish thought that grew out of early Christianity.... By failing to become Christians, Jews implicitly challenged the narrative of inevitable Christian triumph.... The problem with blaming religion is that antisemitism today is no longer driven primarily by Christianity..... Nor does antisemitism among Muslims primarily reflect the classical Islamic claims made against the Jews, such as the accusation that the Jews (and Christians) distorted Scripture.... The tropes of modern Europe’s antisemitism—of Jews’ power and avarice—mostly came to the Middle East late, through Nazi influence. Even the prevalence of antisemitism among Islamist groups like Hamas isn’t primarily driven by religion. Rather, it is part of their politically motivated effort to turn a struggle between two national groups for the same piece of land into a holy war. It emerges that far from being an unchanging set of ideas derived from ancient faiths, antisemitism is actually a shape-shifting, protean, creative force. Antisemitism has managed to reinvent itself multiple times throughout history, each time keeping some of the old tropes around, while simultaneously creating new ones adapted to present circumstances...."

Writes lawprof Noah Feldman, in "The New Antisemitism" (Time).

Much more at the link.

"To say what is or is not 'excessive' or 'disproportionate' requires a judgment call based on a cost-benefit analysis."

"But how can anyone weigh the costs and benefits of incommensurable goods like lives and military advantage? In practice, militaries like those of the U.S. and Israel follow procedures that are supposed to anticipate damage in advance and try to keep it within reason. This effort captures Michael Walzer’s observation that it is not enough to not intend to target civilians; one must also intend not to target them—by making efforts to avoid their death.... Determining whether a given act of violence constitutes genocide... turns on the intent of the actor: Was it meant to destroy a group, in whole or in part?... Israel has declared the war objective of eliminating Hamas, which is a military-political organization, not a whole people.... As for Hamas, its 1988 charter called for the liberation of Palestine and for Muslim sovereignty over the entire land... and does not expressly specify the destruction of Israelis in whole or in part. The upshot is that charges of genocide, made in either direction, likely do not satisfy the legal definition of genocide, certainly not as it would be adjudged by any international tribunal today...."

 
Writes Noah Feldman, in "The Word ‘Genocide’ Has An Actual Meaning/Using legal terms in ways that either differ from or actually contradict their definitions erodes the power of international humanitarian law" (The Atlantic).

"Liberals can and should criticize the mistakes of conservative decisions. That is a necessary step toward reversing them..."

"... when liberals have a majority on the Court again. But they should not indulge in hyperbolic criticism that undermines the very institution over which they should be trying to regain control."

Writes Noah Feldman, in "The Court’s Conservative Constitutional Revolution/The bloc of conservative justices on the Supreme Court have dismantled many of the legal precedents on their hit list. What’s in store for the new term?" (NYRB).

"People I dated seriously, subsequently, were people of substance. Distinguished in their professions."

Said Harvard lawprof Noah Feldman, quoted in "She Pioneered Internet Fame, He Helped Draft a Constitution. Now They’re in Love. Who would have guessed that the former New York media obsession Julia Allison and the law scholar Noah Feldman would make a great couple?" (NYT).

That quote is poetry!

Another Feldman quote: "I was not at an optimistic point in my romantic life. Will anyone ever meet any human ever again?" That quote, too, is poetry, but it loses its punch in context. He was talking about the covid lockdown.

About Allison:

"In The Broken Constitution, Noah Feldman argues that the Confederate states had a constitutional right to secede and that Lincoln violated the Constitution in forcing them back into the Union and freeing the slaves."

Here's the NYRB review of Feldman's new book "The Broken Constitution: Lincoln, Slavery, and the Refounding of America." 

From the review, by James Oakes:

"At oral argument, Justice Elena Kagan, one of the court's best questioners, sometimes... just shuts down... Still, her anger is often palpable, the color literally draining from her face. "

"And Justice Stephen Breyer on occasion just holds his head.... There isn't a lot of love lost among the court's six conservatives either.... If you watch carefully, you can see conservative eyes rolling from time to time.... [M]any of the conservatives are vying for the position of intellectual leader of the conservative majority, while the chief justice privately worries about going too far too fast. There are, in addition, some long and perhaps not so buried resentments among the conservatives. Alito on occasion barely conceals his disdain for Roberts.... In recent decades, the court has built its legitimacy on a certain degree of moderation — giving the left some of what it wanted and the right some of what it wanted. The left got gay rights and gay marriage, and some limits on presidential power exercised in the name of national security. And the right got expanded religious liberty and expanded free speech, which brought with it expanded corporate spending in elections.... But... the court's conservatives detest each other in the same way that the justices did in the 1940s. Back then, they couldn't agree on anything because, as [Noah] Feldman notes, 'they hated each other.' and even though they might have been able to to reach a consensus, they didn't 'because the hatred was so deep.' To cite just one example of how bad it was, Justice Felix Frankfurter called Justice William O. Douglas 'one of the completely evil men I have ever met.' And Douglas referred to the Austrian-born Frankfurter, who was Jewish, as 'Der Führer' and that was during World War ll."

Writes Nina Totenberg in "Supreme Court justices aren't 'scorpions,' but not happy campers either" (NPR). 

The "scorpion" quote refers to "9 scorpions in a bottle," a famous phrase that Totenberg doesn't give a source, perhaps because it's so famous, but perhaps because the usual attribution — to Oliver Wendell Holmes Jr. — seems incorrect. Noah Feldman's book "Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices Paperback" begins with the quote "The Supreme Court is nine scorpions in a bottle," attributed to Alexander Bickel, law clerk to Justice Felix Frankfurter, 1952–53, and drops this footnote:

Am I in denial about the coming demise of Roe ?

I write "Roe" for simplicity, but Roe was replaced long ago by Casey. Denial is embedded in the precedent. Casey purported to discover the "essence" of Roe and rewrote the doctrine, and that was what it meant to adhere to stare decisis. 

After listening to the oral argument yesterday — before reading any commentary — I wrote "I predict stare decisis will prevail." This morning I'm reading the commentary, and everyone seems to be saying they know the Court will overrule Roe Casey, so I thought I'd link to a few things and then speculate about why, politically, that's what you'd want to say.

So, first, the NYT, Adam Liptak: "Supreme Court Appears Open to Upholding Mississippi Abortion Restriction/After two hours of sometimes tense exchanges in one of the most significant abortion cases in years, the court appeared poised to uphold the state law, which bans abortions after 15 weeks of pregnancy." Liptak is vote counting, and he sees Roberts as looking for a middle way — drawing the line somewhere other than viability. Roberts needs another vote, and "the most likely candidates, Justices Brett M. Kavanaugh and Amy Coney Barrett, said little to suggest that they were inclined toward that narrower approach." This middle way would resemble Casey, keeping the essence while changing the doctrine. 

Next, here's Noah Feldman at Bloomberg: "The Supreme Court Seems Poised to Overturn Roe v. Wade/The chief justice suggested a way to restrict abortion without going that far, but the swing voters didn’t engage his potential compromise." That sounds just like Liptak's position, but Feldman goes further characterizing the mindset of Justices Brett Kavanaugh and Amy Coney Barrett: they "seemed pretty set on making history by overturning Roe."

Third, here's Amy Howe at SCOTUSblog: "Majority of court appears poised to roll back abortion rights." Howe counts Kavanaugh among the Justices who seem ready to "overrule Roe and Casey outright." She sees Gorsuch and Barrett as the ones who might join Roberts in this imagined middle position. 

Just one more — Dahlia Lithwick at Slate: "SCOTUS Will Gaslight Us Until the End/Oral arguments today made clear that this court will overturn Roe—and that they’ll insist on their own reasonableness the whole time." This piece is different from the other 3. It's much more of a rant, but overruling Roe Casey, if that's what the Court is really up to, deserves a rant. Lithwick doesn't believe the "precious" talk of the seemingly more moderate conservatives: It's a 6-3 Court and that's that.

I'm going to look at the transcript closely soon, and I'll explain why I think the middle position didn't get much traction and why, consequently, I'm going to stick with my position that the pro-abortion-rights position will win. But just to repeat what I already said: For all the weakness of viability as the place to draw the line, there is no better place, nothing with more of a real-world factual basis. And viability is the line that the precedent draws. 

But I see the value of predicting the overruling of Roe (that is, Casey). Activate people now. Get the political movement started early, because it will be immensely powerful if the Court overrules Casey ("Roe"). And there's some chance that the vision of powerfully activated Democratic Party politics will influence the conservatives on the Court and cause them to preserve the precedent. 

"Maybe because it’s hard to write a drama in which the villain hasn’t done anything terrible yet, Greenhouse makes an uncharacteristic misstep in a brief excursus that compares the new justice to the late Phyllis Schlafly."

"To be sure, Schlafly was an important figure in the early anti-abortion movement. But her anti-feminist crusade against women in the workplace sits oddly with Barrett’s lifelong pursuit of a full-time career as a law professor and judge while raising seven (no, that’s not a typo) children. The only motivation for the invocation of Schlafly seems to be that, as Greenhouse notes, she was the subject of a television mini-series in 2020, and that both were lawyers with large families. 'Forty years later, more than a few people looked at Amy Coney Barrett and saw Phyllis Schlafly,' Greenhouse writes, with no indication of who those people were. 'And how could they not, given the similarity in the two women’s biographies?' This isn’t even guilt by association. It’s guilt by free association. "

That's a hilariously well-written paragraph in Noah Feldman's review (in the NYT), of Linda Greenhouse's book "The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court."

I haven't read Linda Greenhouse's book — nor will I — but it sounds like she indulged in a style of writing that Maureen Dowd uses so much lately. She's watching TV shows and movies and they come up in her stream of consciousness thoughts about current events, and if you let that flow into you're writing, it feels interesting and conversational. 

Ironically, it is not unrelated to the way Donald Trump talks at his rallies. 

"Are the reasons you believe that people should not be telling Breyer to retire substantive as much as practical? In other words, is your fear solely that telling him to retire will make him want to do the opposite so as not to appear political, or do you also think that there are good reasons that he should not retire immediately?"

Sometimes one just slams right up against the horrific shallowness of legal scholarship, and you can only hope to have kept enough of your wits about you to feel a slight pain. And so I twinge as I read Isaac Chotiner in The New Yorker. That's his question above, all multilayered but still paper-thin. Tiresomely, he called up a law professor — Noah Feldman — to produce a transcript, thereby creating a text that must look substantial to some readers.

Harvard lawprof Noah Feldman answers no to the question "Does the Supreme Court really need reform?"

"It’s worth remembering that the undoubtedly conservative Supreme Court that has existed over the last 30 years give us [sic] gay rights, gay marriage, and now statutory protection for the rights of trans people. The same court has chipped away at affirmative action, but has not (yet) eliminated it. Ditto for abortion rights. Yes, it eviscerated the Voting Rights Act, but in a way Congress could repair if it so chose. In fact, in the almost 90 years since Franklin Delano Roosevelt became president, the Supreme Court has been better for liberals than for conservatives. That could change, to be sure. But Democrats need to think hard about the dangers of changing a Supreme Court that has, in many instances, advanced the causes of equality and justice even when most of its members were self-described conservatives appointed by Republicans."

That's at Bloomberg.

It's also worth remembering that gay rights and gay marriage — along with trans rights — could have been given through statutory law and that the Supreme Court rules on a far wider array of issues than the conspicuous gay rights and abortion issues that Feldman forefronts in this effort to ward off Court reform. If the Supreme Court had not decided that abortion is a constitutional right, we would have fought over it in legislatures and, in all likelihood, it would be at least as available today as it is, probably less threatened, and it would not be such a huge factor in presidential elections and judicial appointments. 

But these are the issues that vast numbers of Americans want to think about, so it's not surprising that Feldman concentrates on them as he tries to convince liberals not to mess with the structure of the Supreme Court.

"Regardless of what you or I may think of the circumstances of this nomination, [Amy Coney] Barrett is highly qualified to serve on the Supreme Court."

"I disagree with much of her judicial philosophy and expect to disagree with many, maybe even most of her future votes and opinions. Yet despite this disagreement, I know her to be a brilliant and conscientious lawyer who will analyze and decide cases in good faith, applying the jurisprudential principles to which she is committed. Those are the basic criteria for being a good justice. Barrett meets and exceeds them. I got to know Barrett more than 20 years ago when we clerked at the Supreme Court during the 1998-99 term. Of the thirty-some clerks that year... Barrett stood out. Measured subjectively and unscientifically by pure legal acumen, she was one of the two strongest lawyers. The other was Jenny Martinez, now dean of the Stanford Law School. When assigned to work on an extremely complex, difficult case, especially one involving a hard-to-comprehend statutory scheme, I would first go to Barrett to explain it to me. Then I would go to Martinez to tell me what I should think about it."

Writes Harvard lawprof Noah Feldman (at Bloomberg). I don't really believe Feldman needed Barrett to explain anything or Martinez to know what to think. The discussion of the 2 women is not really about Feldman's help-seeking but about 2 different approaches to statutory interpretation. Barrett (clerking for Scalia) found the meaning in the text "without reference to legislative history or the aims and context of the statute," and  Martinez (clerking for Breyer) would "pragmatically engag[e] the question of what a statute is actually trying to do."

Feldman also vouches for Barrett's character:

To add to her merits, Barrett is a sincere, lovely person. I never heard her utter a word that wasn’t thoughtful and kind — including in the heat of real disagreement about important subjects. She will be an ideal colleague. I don’t really believe in “judicial temperament,” because some of the greatest justices were irascible, difficult and mercurial. But if you do believe in an ideal judicial temperament of calm and decorum, rest assured that Barrett has it.

Reading between the lines, I see a recommendation to the Democratic Senators that they adopt a temperament of calm and decorum — and not because civility is good but because incivility will bite them in the ass. I presume the sincere and lovely Amy will have her 7 children lined up right behind her. Feldman is trying to bestow permission on the Democratic Senators to be very kindly toward Barrett, even though the RBG mourners are screaming for blood.

ADDED: Maybe you, like me, were irritated by the phrase "what a statute is actually trying to do." A statute has no mind. It is not trying to do anything. Human beings have minds and they wrote the statute. What legislators were trying to do when they wrote it includes what they could have put in the text and did not. Their legitimate power does not extend to things they'd also want but neglected or chose not to put in the text that was voted on. Feldman makes it sound more sophisticated for a judge to supply what was left out of the text, but the Scalia position on that is that it's illegitimate for judges to enforce what they imagine the legislators were "actually trying to do."

The indelible mark of impeachment.

I kept seeing that word — "indelible."

"‘It’s a horrible thing they did’: Trump now bears the indelible mark of impeachment" — headline in The Washington Post on December 19, the day after the House took that vote.

"Impeachment indelible stain on Trump’s legacy" — headline in The Boston Herald.

"The indelible stain on Trump’s presidency belongs to the entire Republican Party" — headline in The Colorado Independent.

This idea of the indelible mark works to downplay the knowledge that the Senate will acquit the President. He won't be removed from office, so wasn't impeachment futile? No, it matters! It's an indelible mark that will last forever, a stain that can never be removed!

The assertion of indelibility seemed really important for... what?... a day? And then along came the new idea that the President wasn't even impeached at all. Yes, that too, happened on December 19th. Noah Feldman — last seen somberly informing us that what Donald Trump did was oh, so impeachable — returned for Act 2 of Law Professors Tell You What the Law Is.

It's December 23, and I haven't talked about this show yet. I've been actively avoiding it. I don't want to see "Cats" or "The Rise of Skywalker" either. I did feel like watching vintage TV commercials about laundry products that miraculously eradicated stains. (Remember the Clinton impeachment with its "stained" dress that was only stained because of a conscious choice not to wash it at all?) I found these 2 old Wisk ads — one from the 1970s and another from 1983. They're amusing to watch in sequence because of the radical social change from one decade to the next:





So, what's the answer to the question is Trump impeached? Sorry, I don't play in the show called Law Professors Tell You What the Law Is. But if you want to know what "impeachment" is, I'd say the answer has to do with what Americans believe it is. Whether Trump was impeached is a manipulable concept, and so is whether impeachment dirties the President, even temporarily. Maybe it's a mark of distinction to the one who is impeached and an embarrassment to the impeachers.

Professor Feldman says impeachment is "a process" and it's not complete until the House formally tells the Senate that it has voted to impeach. Is that about what impeachment means or about what impeachment does? The latter question is what turns on the Senate's "sole power to Try all impeachments"? Is the vote enough or must the House tell the Senate about the vote? Do you think the House should have the power to vote to impeach and then to withhold the case from the Senate? If that question needs to be answered, it's the Senate that will give the final answer. But the Senate can just as well decide not to decide, and leave this impeachment where the House has stowed it —in the back of the closet like an unwashed dress...

... she said she initially thought the marks on her dress "could be spinach dip or something."... she didn’t notice the stain until she took the dress out for Thanksgiving. She tried it on for confidante Linda Tripp, who told her it made her look fat. When the two women figured out that the president’s semen was deposited on the blue Gap dress, Tripp — who was taping Lewinsky — encouraged her to keep it....

Just keep it around. You might want to use it. But for now, you know, it makes you look fat.

I thought the law professors would give a very somber, neutral-seeming presentation of what they would characterize as law.

I am surprised that they spoke so severely and stridently and launched right into stating conclusions, applying the law to the facts, and expressing these conclusions in a tone I'm used to seeing in the movies, where hammy actors argue to a jury.

I thought — as I said 2 posts down — the idea would be for the 3 law professors called by the Democrats to provide cover for the Democrats by performing the theater of making everything sound like law and not politics and by speaking in a tone that would feel academic and sadly, grimly inevitable.

But they came on so strong, righteously angry and in an exaggerated tone, making assertions that the things Trump did are impeachable. They did not work to establish our confidence that they were operating in a scholarly zone that was truly their expertise. They did not give us reason to believe we should listen to them as expert witnesses.

What an awful display! And I'm not even counting the motions for who knows what and the roll call votes (which seemed to be the GOP strategy for making the show as annoying as possible). The first 2 witnesses — Noah Feldman and Pam Karlan — scolded and yelled. Michael Gerhardt was a bit milder, but he mumbled and stumbled, and I couldn't believe he brought up the musical "Hamilton."

It was not at all the "constitutional law seminar" that White House Counsel Pat Cipollone decried. It was an unwatchable harangue.

The GOP witness Jonathan Turley stepped back and made an important argument: You need to be careful that whatever you do is going to set a precedent that will be used against future Presidents. Also (and this was quite apt after listening to Feldman and, particularly, Karlan): Everyone is too angry and this isn't the sort of thing we should be doing in a state of high hysteria. Turley bolstered his testimony by assuring us that he didn't like Trump and didn't vote for him. That, ironically, made him the least political of the set of 4 professors, but it isn't quite fair that there's no one on the panel to balance Feldman and Karlan and simply make a scenery-chewing pro-Trump argument.

The Harvard law professor argues that the President of the United States can and should be impeached for saying something that's not supported by evidence.

This is Noah Feldman, writing at Bloomberg:

The sitting president has accused his predecessor of an act that could have gotten the past president impeached. That’s not your ordinary exercise of free speech....

In a rule of law society, government allegations of criminal activity must be followed by proof and prosecution. If not, the government is ruling by innuendo....

But impeachment is not available as a solution to excessive innuendo.

Breaking the law by tapping Trump’s phones would have been an abuse of executive power that implicated the democratic process itself. Impeachment is the remedy for such a serious abuse of the executive office....

Why would that make impeachment the right remedy for saying that Obama did it?

The Constitution speaks of impeachment for “high crimes and misdemeanors.”... Suffice it to say that what makes crimes “high” is that they pertain to the exercise of government office. That’s exactly what accusations by the executive are: actions that take on their distinctive meaning because they are made by government officials....

Obama is the best-known and most popular Democrat in the country. The effect of attacking him isn’t just to weaken him personally, but to weaken the political opposition to Trump’s administration.

Given how great the executive’s power is, accusations by the president can’t be treated asymmetrically. If the alleged action would be impeachable if true, so must be the allegation if false. Anything else would give the president the power to distort democracy by calling his opponents criminals without ever having to prove it.

So the power available to be used against the President must equal the President's power? We need symmetry, an equal-playing-field fight? If that's the theory, we won't have a presidency anymore. The fact that seems to escape Feldman is that Trump was elected President. THAT was the procedure. The trust was put in him.

I know some people are having a terrible time accepting that. Trump wasn't supposed to win. But he did, and the people who voted for him are entitled to their victory, and those who did not still need a President, and those about to devote themselves to the next campaign need elections to maintain their meaning.

Trump may be outright lying about Obama, but Obama told lies too, and all Presidents tell some lies, sometimes for good reason. We made a human being President. We always do. This person will say many things, and we'll be saying many things against him too. Like Professor Feldman, we can say that the President ought to be impeached. But to say the President should be impeached for lying about a political opponent is too much drama.

"How would you feel if your 10-year prison sentence depended on a dangling modifier?"

"That's the situation for Avondale Lockhart, whose case was heard Tuesday by the U.S. Supreme Court...."

According to federal law, Lockhart gets a mandatory 10-year minimum sentence for the child pornography if he had a prior state conviction “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor.” The crucial words here are “involving a minor.” Lockhart says they apply to the whole sentence. Because his prior conviction was for attempted rape of a woman, not a minor, the law doesn't apply to him. The government says “involving a minor” just refers to the last part of the sentence, “abusive sexual conduct,” not to what came before. It thinks Lockhart should get the 10 years.

Reading that description, it's quite clear that Lockhart should win and that Professor Noah Feldman doesn't know the meaning of "dangling modifier." A "dangling modifier" is what I put at the beginning of the previous sentence. The modifier in that federal statute isn't dangling. It's attached to something it modifies, but there's ambiguity about how much else it modifies.

"Ultimately, [Shahab] Ahmed concluded that Islam is not a religion in the usual Western sense..."

"... or primarily a system of religious law or a set of orthodox beliefs, as many contemporary Muslims have come to believe. Islam is rather a welter of contradictions -- including at the same time the tradition of orthodoxy and law and the contrasting, sometimes heterodox traditions of philosophy, poetry and mystical thought. Today’s Salafis miss the contradiction and complexity because they see Islam as only rule and creed... Defined this way, Islam contains multitudes. It incorporates the scientific study of nature, the philosophical inquiry into reality, and the mystical experience of seeking after the divine -- understood in its deepest sense of true love. Indeed, Ahmed described what he called a sixth madhhab, or school of Islamic law, beyond the orthodox five: the madhhab of love."

Writes Noah Feldman in "An Extraordinary Scholar Redefined Islam."

"What caught [lawprof Noah] Feldman's attention was [Kim Davis's] claim that her oath of office, which ends with 'so help me God,' entitles her to invoke a higher law when necessary."

"Feldman thinks she's mistaken. I wish she were; I fear she's not," writes lawprof Stephen L. Carter.

Feldman finds this claim not so much unpersuasive as wrongheaded -- a misunderstanding of the nature of the oath. Davis’s argument, he writes, “implies that obedience to divine law is somehow baked in to one’s constitutional duties and obligations.”...

Like much scholarly writing today about oaths, it seeks to impose a post-modern outlook on a pre-modern practice.... Davis’s argument for relying on her oath of office as justification for disregarding the law of the land is well grounded in history. It’s also dangerous. The nation will not long survive open defiance of court orders by elected officials....

Denny Hastert "was a bland, utterly conventional supporter of the status quo; his idea of reform was to squelch..."

"... anyone who disturbed Congress’s usual way of doing business," writes John Fund "How Did Denny Hastert Get Rich Enough to Pay Millions to an Accuser?"

I saw him become passionate only once, when he defended earmarks — the special projects such as Alaska’s “Bridge to Nowhere” that members dropped at the last minute into conference reports, deliberately leaving no time to debate or amend them....

The [Sunlight Foundation] found that Hastert had used a secret trust to join with others and invest in farm land near the proposed route of a new road called the Prairie Parkway. He then helped secure a $207 million earmark for the road. The land, approximately 138 acres, was bought for about $2.1 million in 2004 and later sold for almost $5 million, or a profit of 140 percent. Local land records and congressional disclosure forms never identified Hastert as the co-owner of any of the land in the trust. Hastert turned a $1.3 million investment (his portion of the land holdings) into a $1.8 million profit in less than two years. Hastert claimed at the time that the land deals had nothing to do with the federal earmark he had secured. “I owned land and I sold it, like millions of people do every day,” he told the Washington Post. Or, as George Washington Plunkitt, the former Tammany Hall leader in New York, once said of someone who made a killing in local land that later became part of a lucrative subway development: “He saw his opportunities and he took ’em.” Plunkitt called such “opportunities” a form of “honest graft.”...

ADDED: But getting that money isn't the crime Hastert is charged with. Nor is conveying that money to a person who accused him of wrongdoing. Lawprof Noah Feldman describes the conduct the government cites in its charges (I've added some boldface):

First, [Hastert] made 15 withdrawals of $50,000 each from his own accounts. The withdrawals were not criminal, but they did trigger a federal law that requires a bank to report any transaction or series of transactions of more than $10,000. In April 2012, according to the indictment, bank officials questioned Hastert about the withdrawals.

Presumably, in those conversations or in conjunction with them, Hastert realized for the first time that he shouldn't be making withdrawals of more than $10,000 if he didn't want to trigger scrutiny. Beginning in July 2012, Hastert switched his withdrawals so that they were less than $10,000 each -- to a total of $952,000. That was a crime under the law that prohibits knowingly structuring transactions to avoid reporting. And it's a crime that seems easy to prove, given Hastert’s change in his withdrawal practices.

Unfortunately for Hastert, when the FBI and IRS questioned him about the structure of the transactions in December 2014, he lied to them, insisting that he “did not feel safe in the banking system.” When asked directly what he did with the money, he said, “Yeah, I kept the cash. ... That's what I'm doing.” The lie to federal officials was a crime, too.

All of that is easy to prove, but we might nevertheless wonder whether the choice to prosecute is really based on the alleged wrong that Hastert spent so much money to hush up. Feldman asks why the government keeping things hushed up too and observes that if the underlying accusation is false and Hastert "was being blackmailed unjustly, then the government's prosecution seems heartless to the point of being abusive." Feldman concludes: "we should know what happened or Hastert shouldn't be charged."

But that assumes that the crimes Hastert seems to have committed should go unprosecuted unless there's something else that that makes us want to convict him of something. I think what is abusive is to have crimes that we don't believe in enforcing that are sitting around only to be used on occasions when we have some other problem with a person!

"I don't actually think the federal government will be executing people in 50 years."

"But if Barack Obama’s Department of Justice not only didn't stop using the federal death penalty, but also actively sought Tsarnaev’s execution, what are the odds that another, more liberal president will come along to do so in, say, the next 15 or 20 years?"

Asks lawprof Noah Feldman, who thinks that if Dzhokhar Tsarnaev is actually put to death, "it will be a signal event in the history of" Massachusetts, "where I was born and have lived most of my life" and where "the death penalty has... come to seem distant, foreign and unfamiliar."

Even though "[a]lmost certainly, the execution won’t actually take place here."

"Every weapons system, from the bow and arrow to the intercontinental ballistic missile, sometimes kills the wrong people."

"So why has the revelation that a U.S. drone strike accidentally killed two al-Qaeda hostages ­— a U.S. citizen and an Italian aid worker — created such a storm of drone 'rethinking'?" asks lawprof Noah Feldman.

I haven't read his answer yet, but mine is: People aren't good at thinking in the abstract. A problem seems different when you know the story of one individual. That's why Steven Spielberg had the little girl in the red coat, and why Joseph Stalin said: "When one person dies, it's a tragedy, but when a million people die, it's a statistic."

Now, I'm reading Feldman. He observes that there has been a "fantasy of precision has been at the heart of the political and tactical appeal for U.S. President Barack Obama." But:

The real military advantage of the armed-drone strike over a conventional airstrike... isn't the precision of the hit. It’s the fact that a pilot isn’t being put in jeopardy. Yet somehow the idea that drone strikes are more precisely targeted has lingered, giving the technique greater public appeal....

When it comes to drones, the fantasy of precision is just that, a fantasy. Killing innocent civilians, whether they’re Americans or Pakistanis or Yemenis, is an inevitable reality of war....

Feldman doesn't directly address why hearing about 2 specific innocent victims causes people to rethink anything. Is it too obvious?