"I would like to congratulate President Xi, and the Great Country of China, on their massive Birthright Citizenship WIN!"

Signed, "President DONALD J. TRUMP."

On Truth Social.

A Trump defender "could point to a prior president, maybe there was a Nixon thing here, maybe there was a Carter thing here, a Clinton thing here, a couple of Obama things here...."

"And they'll say, aha, here's this is analogous or this is analogous or this is analogous. And then they expand and extend and move way beyond that precedent. But then when challenged on it, they can go back and say, well, Clinton did X or Obama did Y. Now two things are true at once. Number one, Clinton often did X or Obama often did do Y.... That doesn't excuse Donald Trump at all. And it doesn't mean that... what Donald Trump is doing is the same level of wrongness. It can be more wrongness. But what he does tactically and what he tries to do legally, which often doesn't fly, but what often flies tactically, especially with his base, is he's constantly pulling from these prior examples that are scattered all throughout modern American history.... [I]f you're an administration that is pulling all of the wrongdoing from say five previous administrations, putting it under one administration and then amplifying all of it, then you do have an issue.... But guys, political fandom should be over, let's not do this, okay?"

Said David French in the new episode of "Advisory Opinions," "All the Things Wrong with Trump’s Billion-Dollar Fund."

The whole discussion there is very good, examining many legal issues and precedents. I'm just selecting that one thing, which is something I've observed again and again. It's not Trump's way to say it stops with me, I see what's wrong, and I'm going to set us straight and get back to what is soundly legal and in line with the intent of the Framers. That might seem to fit his slogan "Make American Great Again," but that's not what he does. He's in the middle of a big fight, and he's going tit for tat and beyond. He's one of those guys who say "If they bring a knife to the fight, we bring a gun."

Of course, that's Obama's line — "If they bring a knife to the fight, we bring a gun" — but he was paraphrasing the Sean Connery character in "The Untouchables":

: 

"Here's how you get him. He pulls a knife, you pull a gun. He sends one of yours to the hospital, you send one of his to the morgue. That's the Chicago way!"

Meade: "Super bloggable, no?" Me: "trying to find an inroad/the photo is overwhelming emotionally"

That's the text conversation here in Meadhouse after I send this to Meade:

 

The eagle — encrusted in gold and seemingly headless — launches into flight, away from us.

Let's see what the particular example of corruption this is — this, the worst example ever. There's never even ever been anything like this. Do you know what example this one is? There have been reactions of horror to so many things Trump has done, but "corruption" is a key hint, suggesting a money grab, and yes, you guessed right, didn't you?

Was it "remarkable"? I'd like to think it's totally normal — the part about the grand jury.

I'm reading "Grand Jury Rebuffs Justice Dept. Attempt to Indict 6 Democrats in Congress The rejection was a remarkable rebuke, suggesting that ordinary citizens did not believe that the lawmakers had committed any crimes" (NYT).

Federal prosecutors in Washington sought and failed on Tuesday to secure an indictment against six Democratic lawmakers who posted a video this fall that enraged President Trump by reminding active-duty members of the military and intelligence community that they were obligated to refuse illegal orders, four people familiar with the matter said. It was remarkable that the U.S. attorney’s office in Washington — led by Jeanine Pirro, a longtime ally of Mr. Trump’s — authorized prosecutors to go into a grand jury and ask for an indictment of the six members of Congress, all of whom had served in the military or the nation’s spy agencies. But it was even more remarkable that a group of ordinary citizens sitting on the grand jury in Federal District Court in Washington forcefully rejected Mr. Trump’s bid to label their expression of dissent as a criminal act warranting prosecution.

I agree that it was remarkable (and awful) to seek this indictment. It was an ugly abnormality that needs to be rejected. But what the grand jury did was — or should be — the norm. 

You know what this made me think of? This post from 2010:

Someone in the comments questioned my use of quotation marks around "heroic father," but I absolutely meant to do that. I said the father "behaved instinctively and even if he thought about [it, he did] pretty much all the only thing he could do to avoid a life of terrible pain and shame if the girl had died after he let her fall in.."

The grand jury was like the father. Not remarkable. Normal.

"I mean, whatever you think about the operation to get rid of Maduro, whether you think it was wise, it was an astonishing display of military prowess."

"And if you are Donald Trump and you pull off such spectacular military successes and then get the reinforcement of the praise and the fear, it's self-reinforcing. And that's why you see him now saying, well what about Greenland? What about Cuba? What about regime change in Iran? Is he just going to continue to get lucky in all these circumstances? We don't know, we're still very early in the presidency... [I]t's true that the Europeans are now spending more on their defense. Donald Trump has managed to get them to do something that other presidents have not. And he should be credited for that. But... America's traditional allies will not go back to the way they were in terms of trusting America.... Even if we do get some restorationist type figure who's saying... you know, everyone needs to hold hands. They've now had this lived experience of an American president that says, we're gonna take this territory. And you know, to hell with you, you're just gonna have to live with it...."

Said Jonathan Swan in today's episode of the NYT "Daily" podcast, "Trump 2.0: A Year of Unconstrained Power" (audio and transcript at Podscribe). As the episode title suggests, today marks the 1-year anniversary of Trump's second term in office.

Swan was responding to a prompt from the host, Michael Barbaro. Barbaro had said that Trump's "interventions," while "legally dubious," "have seemed to turn out pretty well for the United States." NATO is "paying more than ever for its own defense," and Latin America is doing "a heck of a lot more to fight those [drug] cartels."

What I'm sure Swan realizes even as he says those words — "America's traditional allies will not go back to the way they were in terms of trusting America" — is that the Europeans need us. Trump is using their dependence to bargain for things that benefit the United States. That's open and on the surface. Who is this character Swan calls the "restorationist" and what is he up to? Is he trustworthy? Is he lucky?

"As a young staff member in the Reagan administration, John G. Roberts Jr. was part of a group of lawyers who pushed for more White House control over independent government agencies."

"The 'time may be ripe to reconsider the existence of such entities, and take action to bring them back within the executive branch,' the future chief justice of the United States advised the White House counsel in a 1983 memo. Independent agencies, he wrote, were a 'Constitutional anomaly.' Once he ascended to the Supreme Court, Chief Justice Roberts joined other conservatives on the bench in a series of rulings that have chipped away at Congress’s power to constrain the president’s authority to fire independent regulators...."

From "Conservative Project at Supreme Court Meets Trump’s Push to Oust Officials/President Trump has repeatedly ousted leaders of independent agencies despite federal laws meant to shield those regulators from politics" (NYT).

The case — to be argued tomorrow — is Trump v. Slaughter.

The case to be overruled is Humphrey's Executor, discussed in this NYT article, "For Landmark Test of Executive Power, Echoes of a 1930s Supreme Court Battle/Franklin D. Roosevelt’s efforts to oust a Federal Trade Commission leader offer parallels to the current fight over President Trump’s actions" — showing various letters from FDR to Humphrey, saying things like "You will, I know, realize that I do not feel that your mind and my mind go along together on either the policies or the administering of the Federal Trade Commission, and, frankly, I think it is best for the people of this country that I should have a full confidence."

"I no longer can bear to be restrained by what judges can say publicly or do outside the courtroom."

Writes Mark L. Wolf, 78, who has been on senior status as a federal judge since 2013. He's stating a downside of being a judge.Wolf's column, in The Atlantic, is called "Why I Am Resigning/A federal judge explains his reasoning for leaving the bench" (gift link). It begins:

In 1985, President Ronald Reagan appointed me as a federal judge. I was 38 years old. At the time, I looked forward to serving for the rest of my life. However, I resigned Friday, relinquishing that lifetime appointment.... When I became a senior judge in 2013, my successor was appointed, so my resignation will not create a vacancy to be filled by the president. 

Despite being a Reagan judge at the time of appointment, Wolf handed the power to appoint the next judge to President Obama. Wolf is sloughing off senior status to gain a power for himself, the power to speak freely. And what he wants to talk about is Trump's "assault on the rule of law." He ends the column by quoting RFK Sr. — "Each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope" — and the poet Seamus Heaney — the “longed-for tidal wave of justice can rise up, and hope and history rhyme.”

ADDED: For more detail on that Seamus Heaney line, here's Bill Clinton:

"As for the Government’s suggestion that the President is harmed by not being able to impose a uniform definition of sex across various regulatory schemes..."

"... that assertion is just another species of the far-fetched contention that the President must be injured whenever he is prevented from doing as he wishes.... The Government also fails to explain why it needs a uniform definition of sex, much less why such a uniform definition needs to be imposed now such that it cannot await the outcome of this litigation...."

Writes Justice Ketanji Brown Jackson — joined by Justices Kagan and Sotomayor — dissenting in Trump v. Orr, which granted a stay of a district court’s preliminary injunction against a new Executive Branch policy that required all new passports to show the individual's "biological sex" (AKA "sex assigned at birth").

"Under the agreement, $22 million will be paid on Trump’s behalf to the Trust for the National Mall, a nonprofit organisation dedicated to constructing a $200 million ballroom that Trump is building at the White House."

From "YouTube forced to pay Trump $22m for new White House ballroom/The settlement with the Alphabet-owned company totalled $24.5m and was related to suspending the president’s account following the US Capitol riot" (London Times).

"If the precedent set by Mr. Trump takes hold, America may be entering a period when each new administration takes aim at the last one in a cycle of retaliation..."

"... a what-goes-around-comes-around pattern more familiar in authoritarian countries than in developed Western democracies. Even presidents more restrained than Mr. Trump may succumb to the temptation to follow at least some of his example."

Writes Peter Baker, in "In Going After His Foes, Trump Sets a Precedent That Could Haunt His Allies/President Trump’s retribution campaign risks ushering in a cycle of retaliation in which each new administration takes aim at the last one" (NYT).

"Even presidents more restrained than Mr. Trump"? You mean, like Biden?

But, we'll be told, what Biden did to Trump is different. I mean, it wasn't "ushering in a cycle of retaliation." That's something that can only be done by someone who didn't start it.

ADDED: From a column Jonathan Turley published last Friday:

Comey will continue to be vilified and lionized by different parts of the population. Yet, this is an ignoble moment that he helped bring about.... Now the man who bragged about nailing Michael Flynn will face the same false statement charge. The man who celebrated the charging of Donald Trump (including obstruction-related charges) will face his own obstruction charge. Whether karma or lawfare, Comey will now have his day in court.

"Whether you like Corrupt James Comey or not, and I can’t imagine too many people liking him, HE LIED!"

"It is not a complex lie, it’s a very simple, but IMPORTANT one. There is no way he can explain his way out of it. He is a Dirty Cop, and always has been, but he was just assigned a Crooked Joe Biden appointed Judge, so he’s off to a very good start. Nevertheless, words are words, and he wasn’t hedging or in dispute. He was very positive, there was no doubt in his mind about what he said, or meant by saying it. He left himself ZERO margin of error on a big and important answer to a question. He just got unexpectedly caught. James 'Dirty Cop' Comey was a destroyer of lives. He knew exactly what he was saying, and that it was a very serious and far reaching lie for which a very big price must be paid!"

Signed, "President DJT," on Truth Social, this morning.

What, precisely, is the supposedly simple statement Comey made and why is it supposedly now utterly clear that it was not only wrong but a lie?

The "simple" statement is actually an elaborate back-and-forth with Ted Cruz at a Senate hearing on  September 30, 2020:

"Justice Brett M. Kavanaugh.. opined that race can be considered along with other factors in forming reasonable suspicion to stop someone for an immigration check..."

"... such as where people are gathering and what jobs they are working. 'To be clear, apparent ethnicity alone cannot furnish reasonable suspicion; under this Court’s case law regarding immigration stops, however, it can be a "relevant factor" when considered along with other salient factors,’ Kavanaugh wrote. The court’s three liberal justices sharply dissented. 'We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job,' Justice Sonia Sotomayor wrote in the dissent. 'Rather than stand idly by while our constitutional freedoms are lost, I dissent.'"

From "Supreme Court lifts limits on immigration raids in the Los Angeles area/The raids sparked major protests in Southern California. President Donald Trump deployed troops from the California National Guard and Marines in response" (WaPo).

"The Supreme Court on Monday allowed President Donald Trump to fire a member of the Federal Trade Commission despite a federal law..."

"... that is intended to restrict the White House’s power to control the agency.... Trump fired both Democratic commissioners on the five-person FTC in March, [Rebecca Kelly] Slaughter and Alvaro Bedoya. Both challenged the move, although Bedoya later dropped out of the case. Slaughter is currently listed as a serving commissioner on the agency’s website, as the case has made its way through the courts. The firings are a direct challenge to a 1935 Supreme Court precedent called Humphrey's Executor v. United States that upheld limits on the president’s ability to fire FTC commissioners without cause, a restriction Congress imposed to protect the agency from political pressure. Under the 1914 law that set up the agency, members can only be removed for 'inefficiency, neglect of duty, or malfeasance in office.'"

From "Supreme Court allows Trump to fire FTC commissioner/Trump's actions are in direct tension with a 1935 ruling that upheld restrictions on the president's ability to remove FTC commissioners without cause" (NBC News).

"Slaughter is currently listed as a serving commissioner on the agency’s website" — not anymore. 

ADDED: The fact that NBC News referred to the fired commissioners as "Democratic commissioners" gives away the game. According to Humphrey's Executor, the idea was that "The commission is to be nonpartisan; and it must, from the very nature of its duties, act with entire impartiality." And "It is charged with the enforcement of no policy except the policy of the law." 

Who even remembers to pretend that was supposed to be the idea these days?!

"I have long thought that Humphrey’s Executor should be overruled because it is inconsistent with the Constitution’s vesting of all executive power in the President..."

"... and with more recent Supreme Court decisions. Of course, I agree with my colleagues that only the Supreme Court may overrule its precedents.... Granting a stay of the district court’s injunction, however, does not require this court to claim that Humphrey’s Executor has been overruled. Instead, the stay is warranted by the Supreme Court’s decisions to stay injunctions ordering the reinstatement of removed officers.... Everyone agrees that FTC commissioners are principal officers who exercise 'substantial executive power.'... The Constitution establishes three departments of the federal government, and the so-called independent agencies are necessarily part of the Executive Branch, not some headless fourth branch. Commissioners of the FTC exercise 'considerable executive power,' and such officers are not entitled to reinstatement while they litigate the lawfulness of their removal...."

Writes Judge Neomi Rao, dissenting, in Slaughter v. Trump. 

The NYT article about the case is "Federal Appeals Court Reinstates an F.T.C. Commissioner Fired by Trump/The court said the commissioner, Rebecca Kelly Slaughter, had been illegally terminated 'without cause.'" Excerpt: "Since March, the F.T.C. has been led only by Republicans. Ms. Slaughter said in an interview Tuesday evening that she planned to go to the F.T.C. on Wednesday morning to work."

Here's the Wikipedia article on Humphrey's Executor. Excerpt: "The case involved William E. Humphrey, a commissioner of the Federal Trade Commission (FTC) whom President Franklin D. Roosevelt had fired. Roosevelt had fired Humphrey over their policy disagreements involving economic regulation and the New Deal, even though the Federal Trade Commission Act of 1914 prohibited firing an FTC commissioner for any reason other than 'inefficiency, neglect of duty, or malfeasance in office.'"

FDR wrote to Humphrey: "You will, I know, realize that I do not feel that your mind and my mind go along together on either the policies or the administering of the Federal Trade Commission, and, frankly, I think it is best for the people of this country that I should have a full confidence."

"Notwithstanding the Supreme Court’s rulings on First Amendment protections, the Court has never held that American Flag desecration conducted in a manner that is likely to incite imminent lawless action..."

"... or that is an action amounting to 'fighting words' is constitutionally protected. See Texas v. Johnson, 491 U.S. 397, 408-10 (1989). My Administration will act to restore respect and sanctity to the American Flag and prosecute those who incite violence or otherwise violate our laws while desecrating this symbol of our country, to the fullest extent permissible under any available authority.... The Attorney General shall prioritize the enforcement to the fullest extent possible of our Nation’s criminal and civil laws against acts of American Flag desecration that violate applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment...."

From President Trump's executive order, "Prosecuting Burning of the American Flag."

Does that violate the First Amendment even though it explicitly limits itself to what is "consistent with the First Amendment"?

Here's Texas v. Johnson. 

I feel like rereading the dissent:

"For 10 years, I’ve been hearing that we needed to fight fire with fire, to oppose Trump by becoming him, to protect our supposedly sacred liberal institutions by taking some shortcut..."

"... that carved a destructive path straight through them: cracking down on speech, abandoning the norms of journalistic objectivity, making unprecedented use of prosecutorial power. These were bad ideas in their own right, and they did absolutely nothing to stop Trump."

Writes Megan McArdle, in "When the rule of law becomes rule of lawfare/Friday’s Bolton raid and the rebuke of Trump’s $500M fine show what happens when justice is not impartial" (WaPo).

Bad ideas... and they did absolutely nothing to stop Trump. But what if they had stopped Trump? That was the biggest of the ideas, and it might have worked. McArdle asserts that now — now that Trump is back with a vengeance — now we should see that neutral principles are best. If only the lawfare hadn't backfired, it would have been delightful to go on ignoring them.

Delightful for whom? Who are we talking about? Not McArdle herself. She's reporting on what she'd "been hearing" for 10 years. She also says "it was depressing watching so many people on the left thrill to this abusive lawfare." Well, "so many people on the left" think a lot of awful things, including that the so-called "rule of law" is a con.

Did the ordinary liberals of America buy into the fight-fire-with-fire approach? Let them take responsibility, not merely gesture at the "many people on the left." But it's not as though admitting you were wrong now will carry any weight. You played a game of tit for tat and now you're sad that the game continues.

ADDED: Trump plays openly, on Truth Social, just yesterday:

"Weaponizing the Department of Justice to try to punish an elected official for doing her job is an attack on the rule of law and a dangerous escalation by this administration."

"If prosecutors carry out this improper tactic and are genuinely interested in the truth, we are ready and waiting with facts and the law."

Said Abbe Lowell, lawyer for Letitia James, quoted in "Justice Department Subpoenas Office of Letitia James, a Trump Nemesis/Ms. James, New York’s attorney general, won a civil fraud case against President Trump that is on appeal. One of the two subpoenas is related to that case" (NYT).

Department of Poetic Justice.

Well, then that's it: "Judge Denies Request to Unseal Epstein Grand Jury Transcripts in Florida."

The NYT reports.

A federal judge in Florida on Wednesday denied a request by the Trump administration to release grand jury transcripts from an investigation into the disgraced financier Jeffrey Epstein, stymying efforts by President Trump to blunt criticism from many of his supporters.

Either that or it's a great relief.

What do you think is Trump's reaction?

Stymied

Relieved

 

pollcode.com free polls

AND: Follow on NYT headlines:

1. "Polls show Republicans breaking with Trump over the Epstein files" ("The incident has revealed a schism among Mr. Trump’s base, with anger over the Epstein files appearing more concentrated among the traditional Republican wing of the party. Republicans who do not identify as part of Mr. Trump’s MAGA movement were more likely to be dissatisfied with how the administration has handled the files...").

2. "Attorney General Alerted Trump He Was Named in Epstein Files/It was not clear in what context Trump’s name was raised in the files" ("One person close to Mr. Trump, who spoke only on the condition of anonymity, said that White House officials were not concerned about the latest disclosures given that Mr. Trump’s name appeared in the first round of information that Ms. Bondi released").

"Biden aides look to Fifth Amendment as autopen probe widens/The former president’s allies are seeking legal protections amid fear that they have become the latest targets for political retribution."

Headline at The Washington Post. I'd make that a free-access link, but I only have 4 left to give this month and it's only the 18th. And it's one of these 31-day months, too, so I've got to be extra stingy.

I'll cherry-pick the lawprof talk:

“They have little options here in terms of protecting their interests,” said Jonathan Shaub, who teaches law at the University of Kentucky and has advised previous White Houses on the use of executive privilege. “Some have claimed the Fifth Amendment, even though I don’t think they actually think that they have committed any crimes. But given the language that has been used and the insinuations, I can understand why their counsel would say, ‘Just don’t say anything, because we don’t know what they’re willing to do and what they’re willing to prosecute.’”

You don't think they actually think that they have committed any crimes. But what do they need to believe? Is it enough that they believe that the current administration will do anything to get revenge on political adversaries? Professor Shaub can understand why their counsel would say they should plead the Fifth, but would he advise his clients to plead the Fifth based on the idea of not knowing what the Trump administration is willing to do?

"Supreme Court Allows Trump Administration, for Now, to End Biden-Era Migrant Program."

The NYT reports.

Subheadline: "The Trump administration had asked the court to allow it to end deportation protections for more than 500,000 people facing dire humanitarian crises in their home countries."

The court’s order was unsigned and provided no reasoning, which is typical when the justices rule on emergency applications. Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor, dissented, saying the majority had not given enough consideration to “the devastating consequences of allowing the government to precipitously upend the lives and livelihoods of nearly half a million noncitizens while their legal claims are pending.”... 

In an emergency application to the Supreme Court on May 8, Solicitor General D. John Sauer argued that... the lower court had “needlessly” upended “critical immigration policies that are carefully calibrated to deter illegal entry” and had undone “democratically approved policies that featured heavily in the November election,” Mr. Sauer argued.

ADDED: "Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor, dissented..." Not only didn't the Chief Justice join the dissenters, Justice Kagan went with the majority. The middle has spoken. I'm picturing many Trump victories to come in these "injunctivitis" cases.

AND: Here's Jackson's opinion. Excerpt: