Every once in a while

Kevin D. Williamson gets it totally right

And today is one of those days. Today’s Wanderland, from The Dispatch, is outstanding for it’s frank commentary on what has somehow become a question worthy of the Supreme Court’s time. I quote it here for those who don’t follow Kevin or read TD.

“That we’re having a conversation about presidential immunity from criminal acts is insane.

Kevin D. Williamson

Jan 22, 2024

I take a relatively narrow view of legitimate government power. Some of you will disagree, but indulge me for a moment. 

You know those videos that go around about once a year in which some jackass police officer from San Bernardino or some comparable hellmouth pulls over an unoffending motorist (disproportionately young women) and then laughingly presents the obviously terrified driver with a Thanksgiving turkey or a Best Buy gift card or something like that? I think every one of those guys should be fired—and where there is a law to prosecute them under, they should go to jail. These pranks are a grotesque abuse of police power, subjecting innocent people to stress, anxiety, and serious physical danger (traffic stops increase the risk of being involved in a wreck) because some gormless state functionary is bored and decides that his life will never have any meaning until he stars in a viral video on YouTube.

If the police in Springfield, Missouri, wanted to hand out turkeys to little old ladies, they could walk into any bingo hall or strip-mall parking lot and do it. But that wouldn’t be a very good video, would it? Why? Because the entertaining part is the fear and anxiety inflicted on people who already are suffering the indignity of living in Springfield, Missouri. Getting pulled over by the police is an involuntary detention, i.e., the mildest form of arrest. And before all you lawyers out there fire up your emails, I don’t care how fine you want to cut it: If you can’t say “Go f—k yourself, ossifer” and drive off without getting shot and/or put in jail, then you’re under arrest, whatever the lawyers call it. For a normal person, that’s extremely stressful—and if you are the kind of guy who is willing to use his badge and gun to subject someone to that kind of stress in a quest for social-media likes and giggles, then you shouldn’t have a badge or a gun. The eternal problem with police work is that the kind of people who have the capacity to use violence when doing so is legitimate and necessary live in a Venn diagram circle with a great big overlap with the world of vicious bullies with mental problems. That’s why so many cops are criminals. 

That’s a relatively petty example. Let’s look at another one where I was in the minority. 

As I wrote at the time, I believe Barack Obama should have been impeached and removed from office for—and let’s not polish it up too much—murdering an American for political reasons. The American in question, Anwar al-Awlaki, was an absolute heap of garbage, a jihad apologist who became known as “the Osama bin Laden of Facebook.” And here, I’d like to emphasize the final two words in that epithet: of Facebook. Not the Osama bin Laden of Tora Bora or Nairobi or Dar es Salaam, but the Osama bin Laden ... of Facebook. He was an al-Qaeda apologist and recruiter who was no doubt guilty of a whole raft of crimes for which he was never tried on account of his being a smoking cinder. He could have been captured and put on trial, if he hadn’t been blown up. Alternatively, he could have been killed in combat—in Afghanistan or somewhere else—and you wouldn’t have heard any complaints from little ol’ me. My libertarian heart would have been content. 

But he wasn’t killed in combat, because he was ... the Osama bin Laden of Facebook. He didn’t die on some battlefield in Afghanistan. He was killed in Yemen, on his way to breakfast, in an operation that targeted him, specifically, for being the Osama bin Laden of Facebook, i.e., a wretched propagandist and troll and an advocate of evil things. The Obama administration would attempt to ret-con the homicide and insist after the fact that he had gone “operational,” whatever that means in this context, which is approximately squat. Al-Awlaki’s beliefs were reprehensible. But there are lots of people out there with reprehensible political views, and nobody is planning a drone strike on the Claremont Institute or on Steve Bannon’s favorite bar, or whatever cuckold-fetish sex dungeon full of “exceptional, muscular well-hung single men” Roger Stone is swanning around in these days. 

The Obama administration wasn’t shamefaced about assassinating an American political dissident—and it wasn’t exactly a covert operation: They bragged about maintaining a “kill list” to the New York Times. Anwar al-Awlaki was Barack Obama’s answer to Ricky Ray Rector, the brain-damaged guy whose execution Gov. Bill Clinton of Arkansas oversaw with unseemly gusto (seriously, Slick Willie did everything short of hiring a marching band to play “The Washington Post March”) in order to burnish his tough-guy credentials prior to running for president. (Rector, who had shot himself in the head after committing one murder and several other shootings, was so brain-scrambled that he left the pecan pie he was served at his last meal on the tray, telling guards he was “saving it for later” as he was led off to the death chamber. Just straight-up, high-grade pathos.) But, hey—they got the Osama bin Laden of Facebook! Eventually, they got the real Osama bin Laden, too, and no tears were shed. But repulsive cretin that he was, Anwar al-Awlaki was a U.S. citizen, killed by the U.S. government, having been targeted for things he had said and written. Citizenship is supposed to mean something in these United States. 

I threw a fit about the al-Awlaki assassination at the time, and my fit caught the attention of, among others, Sen. Rand Paul, who read some of my columns into the congressional record while staging a 13-hour filibuster of John Brennan’s nomination to run the CIA, demanding that the Obama administration at least forswear conducting drone attacks on U.S. citizens inside the United States (as though they stopped being U.S. citizens when abroad). This was a pretty modest ask, to be sure, but that’s a libertarian for you.

A fair-weather libertarian, at that. A very strange thing has happened to Sen. Paul. When Donald Trump’s lawyers went to court to argue that the president could order SEAL Team 6 (everybody loves writing and saying “SEAL Team 6”!) to assassinate a rival presidential candidate and then remain immune from criminal charges unless impeached and removed from office, Sen. Paul developed an acute case of sudden-onset mushmouth, answering: “It’s a very specific legal argument, and I’m afraid I’m just not up on it enough to be able to comment.” For context, Trump’s current claim is that the president can do literally anything he wants without facing criminal charges. How far we have come from knocking off the Osama bin Laden of Facebook!

All of this is, of course, insane. 

After hearing Sarah Isgur talk about typefaces on a recent podcast, I now know how she feels when she reads my writing about legal issues. I am sure there are all sorts of cocktails-at-Harvard-Law nuances and good points and important technical questions and such that I am here going to run roughshod over, but—this conversation is insane. The job of the president—his office—is to “faithfully execute the laws of the United States.” By definition, crimes cannot be legitimate official acts—acts of office—for the president, or for anybody else in government. There isn’t a damn thing in the law or in our Constitution providing blanket criminal immunity to presidents for crimes committed in office. We have a prudential convention holding that sitting presidents shouldn’t be indicted, for practical reasons, based on a Richard Nixon-era (ho, ho!) Justice Department opinion. The Constitution, which does confer certain privileges and immunities on members of Congress, does not confer these on the president. In fact, the Constitutional Convention considered the question and declined to extend any privileges to the president save the guarantee of his salary. You can read all about the legal and constitutional issues in full in Saikrishna Prakash’s very interesting paper, but consider this: 

Any interpretation of the Constitution that demands impeachment and removal before arrest and prosecution of a President makes it possible for a chief executive to continue to violate the law, including criminal laws, and to continue to subvert the Constitution. The arrest of a sitting President serves two distinct purposes: to ensure presence at trial and to incapacitate someone who might commit further crimes and constitutional wrongs. Of course, incapacitation is impossible if the criminal justice system must await a protracted House impeachment and Senate trial that might never occur or, worse yet, might result in an acquittal of someone guilty of crimes but not impeachable offenses.

In fact, we had a president arrested while in office, long before anybody was thinking about immunity for Donald Trump: Ulysses S. Grant (talk about “Hyperion to a satyr”!) was arrested by a Washington policeman for habitually speeding in his buggy after having been previously issued a warning by the same officer. President Grant didn’t claim immunity—he commended the officer for doing his job and enforcing the law, no matter who the offender is. President Grant, as you students of history will know, had some serious stuff to deal with during his administration. And he was the general who had saved the Union, not some two-bit gameshow host and quondam pornographer. The Grant episode was a small thing, but it was a small thing that illustrates one of the big things. 

Certain conservative lawyers, including my friend Andrew C. McCarthy, have spent years building an imperial model of the presidency that puts the chief executive effectively above the law. I’ve discussed this at some length with Andy, though not recently, and his argument is, put simply, that the president personifies a branch of government, and that separation of powers prevents one branch from exercising dominion over another, meaning that, as a practical matter, the only cures for a lawless president are impeachments and elections. I think that argument is bonkers—and I have great respect for Andy—but, even if it weren’t bonkers, it would be an argument that applied to sitting presidents. Even Andrew McCarthy concedes that there is no question that presidents can be criminally prosecuted for private conduct, advising only that there may be ambiguities in distinguishing private from official acts. Where there is less ambiguity is in Trump’s demand for “total immunity,” which Andy describes in a recent column as “provocatively wrong and dumb.” 

Donald Trump does not personify a branch of government today—he does not personify anything other than cowardice, venality, and bad taste. That supposed libertarians such as Sen. Paul can be so easily buffaloed into accepting his “infinite crimes” model not only of the presidency but also of the post-presidency is a reminder of how easy it is to morally corrupt such a figure—a reminder that weak men are not only contemptible but dangerous. Consider that Sen. Paul’s partner in that filibuster, Sen. Ted Cruz, described Donald Trump as a “sniveling coward” and characterized him as utterly unfit for the office—and has just endorsed Trump for president, again, calling on Republicans to unite behind him. Trump, for his part, recently was quoted in the New York Times saying that Ted Cruz “shouldn’t even exist.” But after a guy has called your wife ugly and your father a murderer and you still can’t get on your knees for him fast enough, where else is there to sink? Oh, don’t worry—if there is a lower place to sink, Ted Cruz will find it. You know that one guy who supposedly slunk away from the Alamo after Col. Travis drew his famous line in the sand? That’s Ted Cruz. 

When Trump boasted that he could murder someone on Fifth Avenue in broad daylight and not lose any support, everybody thought he was just talking about the rubes up in the cheap seats. Turns out there are cheap seats in the Senate, too, and rubes to fill them. I wouldn’t have thought, watching that Obama-era filibuster, that such figures as Sen. Paul and Sen. Cruz would turn out to be leading enablers of tyranny in the United States. I would have expected them to err on the other side, if anything. But man is a fallen creature, and these two apparently have fallen from a considerable height and landed on their heads, not that they’ve used the atrophied organs within their thick skulls in the better part of a decade or so, if not longer. 

The question of blanket criminal immunity for such a figure as Donald Trump is rooted in a few different things: One is a persistent misunderstanding of the respective roles and status of the president and Congress in our constitutional order; another is the servile character of such men as Cruz and Paul and others of their ilk, whose main political position is supine; a third is failure to understand that in The Tragedy of Julius Caesar, the hero is Brutus, whose great failure was in disposing of Caesar but letting Caesarism live. We don’t want assassins for the problems we currently face—but we do want a few men and women, maybe even senators, with enough guts and self-respect to say in plain English what needs to be said.”