HEANEY'S CHOICE . . . AND OURS

We have been here before. 

Many times.

We were here in 1776, 1787 and 1860. 

In 1929, 1941 and 1968.

In January 2021.

And we are here again.

Here is not a place . . . 

Or a space . . . 

Or even a time.

It is a choice.

In the final analysis, the choice is always clear. 

But not at the time. 

So the actual choice . . . 

At the time of choosing . . .

Is . . .

Difficult.

Impossible for some.

Painful for many.

So painful that it can be . . . 

Denied.

Even after it is made.

Because acceptance would be the death of something unwilling to die.

Maybe . . .

Anger.

Or ignorance.

Maybe something smaller.

But less abstract

Like a block.

Or a team.

Or larger.

But also less abstract.

Like a friendship.

Or a family.

Or a marriage.

The President has made his choice.

It surprised us.

It should not have. 

He has always been a man . . .

Of choices.

Big ones. 

Some sought.

Many not.

None . . .

Avoided.

All . . .

Clouded in uncertainty . . .

At . . .

The time of choosing.

And now . . .

We too must choose.

Seamus Heaney tells us:

"Human beings suffer . . .

They torture one another,

No poem or play or song can fully right a wrong inflicted and endured.

History says, don't hope

On this side of the grave.

But then, once in a lifetime, the longed-for tidal wave of justice can rise up,

And hope and history can rhyme.

So hope for a great sea-change on the far side of revenge.

Believe that further shore is reachable from here".

And . . .

Choose.

Wisely.

There will be no do-overs.

FROM HOLLER TO HYPOCRISY -- THE MAGA-FICATION OF JD VANCE

In 2016, Donald Trump needed to convince church-going Evangelists that a twice-divorced adulterer and erstwhile pro-choicer could still be their President.  

So he picked Mike Pence to be his Vice President.

Today, Trump needs to convince some supposedly undecided voters residing in Michigan, Wisconsin, Pennsylvania, Georgia, Arizona and Nevada that an election-denying, J6 coup plotting authoritarian with a preternatural allergy to facts and truth is not a wanna-be fascist ready to turn America into a 21st century version of the 20th century's Axis powers.

This is a tall order.

In a sane world, a normal political party would search for someone who was not an election denying, J6 coup plotting authoritarian.

Someone, for example, like Nikki Haley.

In an even saner world, the election denying, J6 coup-plotting nominee would concede the past so as to jettison the denial and distance himself from the coup.

Donald Trump, however, is not a normal nominee and the Republicans are not a sane political party.

They are both in love with lies.

The lies . . .

That Trump won the presidential election in 2020; 

That his then-Vice President could have legally refused to count legitimate electoral votes because he (or his agents) had created  fraudulent slates of so-called alternative electors; 

That he bore no responsibility for the mob he told to "fight like hell" on January 6; the one that ransacked the Capitol and terrorized elected Representatives, Senators, staff and police to stop the vote count; the one he could have but did not control and never ordered the National Guard to disperse.

So this time he picked JD Vance to be his Vice President.

Who, unlike Pence, is a Trump mini-me.

And is . . .

Also unlike Pence . . .

In love with the same lies.

JD Vance is the 39-year-old junior Senator from Ohio.  His political resume consists of two years in the Senate.  He is an ex-Marine and though he rails against elitists, he willingly attended and then subsequently exploited a degree from Yale Law School to obtain more wealth than he ever imagined possible in the neighborhoods that raised him.  

Those neighborhoods, of course, also put him on the map.

Or, put more accurately, he put them on the map in a best-selling memoir. 

The memoir, entitled Hillbilly Elegy, was published in 2016.

It was a great book.

And its author could have become a great man.

Had he remained true to its core insight.

But he hasn't.

The core insight of Hillbilly Elegy is that individual honesty and responsibility matter.  

Vance is a Scots-Irish  product of a "holler" in Kentucky's Appalachian hill country. Though he was not born there, his parents, grand-parents and extended family of uncles, aunts and cousins were.  He regularly returned there from Middletown, Ohio, and was basically raised by his grandparents, who also left but also regularly returned and who are (as he expects to be) buried there.

The nuclear and extended Vance family was, to be kind and in JD's transparently honest telling, dysfunctional. Though independent, self-reliant and manically loyal to their own, they were -- as often as not -- unhinged, violent and utterly irresponsible.  

Thanks to his mother's addictions and serial love life, he has had to try on three last names. Picked up from "a September day in kindergarten," he was told he'd "never see [his] dad again.", who gave him up for adoption. And at home, he was "introduc[ed] to "marital conflict resolution." 

"Here were the takeaways," he says: "Never speak at a reasonable volume when screaming will do; if the fight gets a little too intense, it's ok to slap and punch, so long as the man doesn't hit first; always express your feelings in a way that's insulting and hurtful to your partner". 

Child rearing was not much better. 

As his mother "cycled through boyfriends," JD grew "accustomed to a certain amount of instability . . . There would be fighting or running away from fights; when things got rocky, Mom would explode on us or even slap or punch us . . . With partying came alcohol and with alcohol came alcohol abuse".

Things got so bad that Vance, more than once, had to lie to keep his mother out of jail.

The upside was his grandparents eventually took over. 

By then, they had overcome alcoholism and skirt-chasing (grandpa) and "covert war" (grandma) -- and, apparently, a "Hillbilly culture" that then "blended a robust sense of honor, devotion to family, and bizarre sexism into a sometimes explosive mix" -- to be the parents to Vance they had not been to Vance's mother. Though they lived apart, grandfather Papaw was an FDR devotee who had a steady job at (and unvarnished pride in) Armco, the steel production company, and grandmother Mamaw (with whom Vance lived) had three rules: "Get good grades, get a job and 'get off your ass and help me'."

JD needed them.

By high school, his musical chairs life of changing homes, an addicted mom and "the express train to crazy" had turned him into a likely drop-out and potential druggie. 

His grandmother saved him from that. 

The Marines then turned him into a disciplined, capable and independent man.

And Ohio State and Yale Law were his path out of the rust belt and the holler.

On Wednesday night, he became Donald Trump's (second) running mate and the Republican Party's 2024 candidate for Vice-President. 

His acceptance speech was an odd amalgam of family pride, devotion to the class and culture of his birth, and creation of political history that doesn't exist to save the neighbors he claims Joe Biden (but not Donald Trump) forgot.

To get there, and let's be unapologetically Mamaw-ish on this point, he had to kiss Donald Trump's ass.  

Though careful to avoid the subject last night, JD thinks the 2020 election was stolen from Donald Trump and the J6 Capitol seizure not all that important and certainly not something for which Trump bears any responsibility. 

In advancing these claims over time, Vance had been cagey.  Trump's claims of outright fraud become, on Vance's telling, legitimate disputes over rules changes that worked (in some  but not all places) to Trump's disadvantage. He ignores the fact that courts said the rules changes -- which merely increased the ability to mail in ballots or vote before election day in light of Covid -- were valid both before they were used and after the election had occurred.

He also ignores Trump's conduct on January 6.

This is right out of Hillbilly Elegy . . .

But without any of the honesty.

In the holler, as in the case of Trump, violence to different degrees is an accepted way of life for which no apology is sought or given.  Vance was honest enough in his book to call this out but has resurrected the denial of his youth when confronted with the same behavior by Trump.  Put more starkly, the JD who peed in a cup to save his Mom on a urine test is now whitewashing Trump's lies to, so he says, save America.

He should know better.

Enabling never works.

His "save America" lies now  will fare no better than his save Mom lies did way back then.  

Beverly Vance was addicted to alcohol and drugs.

Donald Trump is addicted to power and himself.

As Vance told us last night, Beverly is in recovery, now for almost ten years.

Donald Trump, however, is not.

The other exercise in enabling on stage last night in Milwaukee was Vance's denial of history.  

In Hillbilly, Vance got a lot of his history right.  Grandma and grandpa were both Democrats, the latter a lover of FDR's New Deal and the pro-labor world it established that put Armco in Middletown, Ohio and gave him his life's work, the former a lover of Bill Clinton, a product of the rural south who could feel her pain. 

He also called out the holler's instinctual aversion to "the other", one that worked (unfairly) against Barack Obama, and noted that, in his experience at home, the lazy "welfare queens" were white.  Finally, Hillbilly was honest in describing the hollowing out of the mid-western manufacturing economy and the unfair burden that has imposed on the poor.

Last night, however, Vance told us he was against the passage of NAFTA in the 1990s, against the globalization that has allowed Wall Street to arbitrage American labor with cheaper foreign substitutes for the last thirty years, and against the war in Iraq in 2003. Ted Kennedy, Bernie Sanders and a host of other Democrats were against all of that as well, and  Ronald Reagan, the two George Bushes and the entire Republican Party were for it all.  For his part, Barack Obama opposed the war in Iraq,

But in Vance's world, all these policies are the fault of Joe Biden.

This is denial on steroids.

Nor did Vance's effort improve when he talked about Trump.

His claim that Trump opposed the war in Iraq was false.  Trump did not.  His claim that inflation adjusted earnings and workers' wages rose at unprecedented levels under Trump was also false.  Inflation adjusted wages stagnated until around 2014 and began to grow in Obama's second term at levels that were matched (because of Obama's policies which Trump inherited) but not exceeded in Trump's term.

There is a lot that needs to be done to bring back the holler.  

But . . .

On infrastructure, manufacturing and jobs, especially in the rural areas that Vance claims as his own, Biden is doing what Trump never did.

In truth, Vance's speech last night was designed to convince voters that he and Trump were somehow left-wingers on the economy and war in the 1980s, '90s and 2003 so that voters will allow them to be right-wingers in 2025 and thereafter.

The transformation, however, is impossible.

Trump has a record he cannot escape.  He supported Bush's Iraqi war. His mismanagement of the Covid pandemic was monumental; the advice to ingest bleach was his low point but of late he has even undermined his high point -- creating the vaccine -- by siding with deniers. The economy he brags about was Obama's, not his. For four years, he promised but never passed an infrastructure bill. And his tax cuts were just another GOP version of relief for the wealthy.

Vance, however, is also without escape.  

Though he was kid (or a soldier and student) until 2013, he made choices thereafter. 

If he really thought America's pols had ignored his neighbors for thirty years, he would have found many more allies in the Democratic Party than he could ever find in the Republican one. 

Ted Kennedy, Bernie Sanders, Bill Clinton, Barack Obama, Ohio's own Sherrod Brown and even Joe Biden are light-years closer to what Vance claims to be for now than anything on offer from Trump or the GOP.  With the latter, it's tariffs and tax cuts and the false claim that illegals are stealing jobs in the holler.  With the former, it's labor law reform, unionism, an increased minimum wage, the Affordable Care Act, infrastructure spending, a reemerging auto industry, the return of manufacturing and the green jobs of the future. The GOP supports none of this. In fact, they have spent much of the last week  maligning it in Milwaukee.

And then, of course, there's the right wing JD Vance. The one he hid last night. The one who . . . 

Thinks abused women should stay in abusive marriages . . .

Opposes abortion even in the case of rape or incest . . .

Doesn't care "what happens in Ukraine one way or the other" . . .

And, worst of all . . .

Would not have certified the 2020 election had he been Vice President.

In Hillbilly, Vance had some painful advice for "his neighbors, friends and family."

"The truth is hard," he said, "and the hardest truths for hill people are the ones they must tell about themselves."

Maybe he should re-read his book.

A CHALLENGING "WHAT IF?"

Would someone please give me medical evidence that Joe Biden cannot do his job?

To be clear, that would require a diagnosis that he has a disqualifying condition.

As far as I can tell, the only such conditions would be dementia, stage 3 Parkinson's disease or a stroke. If he was terminally-ill and bed-ridden with cancer or had end-stage congestive heart failure, that too would qualify.  To be clear, messing up a debate, reading from a teleprompter or confusion in the face of an opponent's unchallenged Gish-gallop of lies does not qualify. 

Age-related frailty does not qualify.  

Being required to get a little extra sleep every night does not qualify.

And three weeks of op-eds by pundits and the occasional actor . . .

Does not qualify either.

No matter how much they profess to love him.

Whether Joe Biden or anyone else can actually do the job of being president probably depends, at least as an initial matter, on what it takes to actually do the job.  As a democracy that elects its president, the easiest answer is that it takes whatever the voters think it takes.  This is fair as far as it goes. It runs, however, into problems once "what it takes" turns out to be a checklist for partisanship rather than a criteria for competence . . . 

Which is pretty much where we are today with Joe Biden.

For years, and without any objective evidence, Donald Trump and the rubber-stamped Trumpism that is today's Republican party have proclaimed Biden not fit to serve on account of his age.  They have openly proclaimed, again without any evidence, that Biden is physically and cognitively impaired and therefore cannot do his job.  Until a few weeks ago, the only "evidence" of any of this was the President's halting gait. 

The claim itself took a huge hit in March when Biden gave an impassioned State of the Union address replete with extemporaneous gibes at the right-wing amen chorus and an in-the-aisle after-party that had the Speaker wondering when he'd get to turn the lights off and send everyone home. In fact, things were so bad evidence-wise that Trump was repeatedly field-testing a "Joe's on drugs" explanation for any exhibitions of presidential energy and with-it-ness. 

But then, of course, the debate happened and Biden's poor performance became an evidentiary Rorschach test for anyone who had ever told him to be a one termer.

The problem with Rorschach tests, however, is they turn out false positives roughly half the time.  

In other words, they are useless.

And that is also the problem with using Biden's debate performance as a substitute for medical evidence.

The real job of the president is to uphold the oath of office, otherwise  make good decisions on difficult issues and work with and persuade Congress to fashion appropriate legislation.  The qualities needed to do so are respect for the rule of law, intelligence, honesty, empathy, patience, a willingness to listen and learn and the courage to admit when you are wrong. Because the job is so complicated and all-consuming, it also requires a team of non-yes men and women who can distinguish between signal and noise and a schedule where a full day's work is actually a full day.

In his one term in office, Donald Trump exhibited none of these qualities.  He broke the law, lied habitually and was lazy. "Executive time" in the residence and out of the Oval became the biggest item on his daily schedule. And while his team during that term thankfully included those whose saved us from his worst instincts, including his desire to illegally re-install himself in the White House after he lost, that will not be the case in any second term. Only the cravenly loyal will be part of any follow-on inner-sanctum.

My first reaction to the debate was to admit it was bad and that age-related questions had to be answered. I thought they could be with an independent medical exam. The White House response was that such an exam had already been done this past February and neurologists had declared the President  fit and free from "any cerebellar or other central neurological disorder, such as stoke, multiple sclerosis, Parkinson's or ascending lateral sclerosis." 

To me, that seems sufficient. 

To George Clooney, however, it is not.

What gives?

Lynn Casteel Harper is a minister and chaplain.  She has just written an article entitled "Ageism is Making it Impossible to Fairly Judge Joe Biden."  It appears in the current edition of America, the Jesuit review of faith and culture. 

In the article, Harper explains that "in the days since the first presidential debate" all she saw was "the circular logic that says [President Biden] is just too old”, is “incapable of leading because he's just too old and/or vulnerable to losing the election because he's just too old."  Instead, however, "of challenging the 'too old' assault for what it is -- a generalization propped up by the false equivalence of incompetence with old age -- many in the Democratic party have accepted and perpetuated this ageist language."

It is, she says, "warping media coverage and the calls for his resignation."

As Harper points out, the warping involves "both hyper-visibility and invisibility".  The "hyper-visibility scrutinizes all slip-ups, stumbles or slow-downs . . . Because ageism promulgates the notion that old age spells universal diminishment, all these highly tracked lapses are said to simply prove the point -- thus concealing ageism under the guise of 'just what it is.' Every flub from Mr. Biden gets routed back to the 'too old' evidence pile."

"The flipside of hypervisibility," she points out, "is the invisibility associated with old age, the . . . erasure [that] hides older people's gifts, knowledge, potential and accomplishments,” as well as the “positive attributes and contributions from old age." "Decline," she notes, "is presumed to be the hallmark of old age, and any kind of strength or ascendency . . . incidental or accidental". "Eclipsed by his age-associated weaknesses," she explains, "Mr. Biden's accomplishments are rendered invisible."

George Clooney's op-ed yesterday was only the latest example of this warping.  

In it, the acclaimed actor makes two assertions. The first is the unproven claim that Biden cannot win. Even after the debate, all the polls still handicap the race as a margin of error one at best. The second is the equally unproven claim that he cannot win (and Democrats will lose the House and Senate) because of his age. And that, at this point, threatens to become a self-fulfilling prophesy if repeated often enough. The rest is all about hyper-visibility or how we "collectively hold our breath or turn down the volume whenever we see the president, whom we respect, walk off Air Force One or walk back to a mic to answer an unscripted question."

This is not just the fault of Trump and the Republicans.  

As Harper admits, Biden himself has contributed to the problem with "super senior" push-up challenges that "defend his worthiness" through "physical feats of strength."  More to the point, she writes, "Mr. Biden and his team -- and the journalists who cover him -- have rarely seized the opportunity to foster a different narrative of his aging", one that focuses "on how his judgment has gotten keener, or on how he is not the person he was a decade or two or three ago (the man who maligned Anita Hill and voted for the Iraq War), and that is a good thing."

"What if," she asks, we "acknowledged that Mr. Biden cannot zig-zag the globe and be in top debating form . . . but . . . knows how to build and lead a team, delegate appropriately, and ask for help when he needs it. Maybe it is too dangerous to admit and embrace aging in this way, and maybe ageism's stranglehold is so strong that it would not help anyway, but it seems equally counterproductive to ignore aging altogether and cede the premise that being 'too old' is automatically disqualifying."

To be clear, Harper is not saying "aging leaves us unchanged."  It is not, she admits, "just a number." "Fresh limitations and challenges arise as the years go by, but other things can emerge too, such as refined perspective, greater discernment about what is important and deepened relationships."

In the will he or won't he drumbeat that has taken over, none of this is being said. 

And that may be the biggest tragedy that now awaits us.  

There is no guarantee a different Democrat can take out Trump. He or she may not have the time. Or may not survive the vetting.  Clooney glides by these legitimate concerns, dismissing them as "scary stories" that are "simply not true."

Perhaps.

But here's another story.

Harper again:

"Mr. Biden possesses many positive attribute that become possible with accumulated life experience, something that may not necessarily be true of his opponent in this election."

The only thing wrong in that last sentence is . . . 

The “may not”.

REVERSING HISTORY 

George III is laughing in his grave.

It took 248 years but America finally decided it wants a monarch after all.  

Or at the least the Supreme Court has made that decision.

The rest of us must now endure it for some foreseeable future.  

It is unclear how many presidential crimes we will also have to endure along the way.  

If Trump is elected this November, the sky may well be the limit. 

You can rest assured he will not be prosecuted for the attempted coup he orchestrated in the aftermath of the 2020 election.  You can also rest assured that, armed with a veritable handbook on how to turn America into the authoritarian fascist state he longs for, Trump's sycophants and institutional toadies will exploit the Court's idiotic endorsement of l'etat, c'est moi to give him precisely what he wants.

That is the immediate effect of Monday's Supreme Court decision in Trump v. United States.

The long-term effects are even worse.

In forty-two pages of judicial sophistry, John Roberts vacated the decisions of two lower courts that had declared Trump not immune from prosecution for having orchestrated his attempted coup.  

None of this Court's usual sources provided any basis for doing so.  

The text of the Constitution does not make former presidents immune from criminal prosecution.  In fact, it provides for the exact opposite in the so-called Impeachment Clause, which states that even a president convicted by the Senate on impeachment "shall nevertheless be liable for and subject to Indictment, Trial, Judgment and Punishment, according to Law."  

Nor does history, this Court's other go-to source on all questions constitutional, support in the least any grant of immunity.  

Again, the opposite is the case.  

At the time of the founding, a number of states had constitutions that gave their executives (i.e.,governors) immunity from criminal prosecution.  The Founders, however, decided not to do so. This was not all that surprising.  The country had just won a Revolutionary War separating itself from a regime where its executive, namely, the King, was immune. The Founders were not remotely interested in resurrecting that disaster.

At this point, Roberts and his Republican-appointed colleagues should have given up the ghost, affirmed the two lower courts' denial of immunity, and allowed the case against Trump to go forward.

But they didn't.

Instead, based on a problem that does not exist . . .

They created a solution that will make things worse.

Far worse.

The non-existent problem is that criminal prosecutions of former presidents will somehow cripple the Executive Branch.  As Roberts put it, under "'the pall of potential prosecution", "the hesitation to execute the duties of his office fearlessly and fairly . . . raises 'unique risks to the effective functioning of government."

"A President inclined to take one course of action based on the public interest," he said, "may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office. And if a former President's official acts are routinely subject to scrutiny in criminal prosecutions," he continued, "'the independence of the Executive Branch' may be significantly impaired."

There is, however, no evidence whatsoever that this problem has ever existed.

None.

No former president has ever said or even implied that he made or hesitated to make any decision because he feared he was violating the criminal laws or would be held accountable for any putative violation once he left office.

Not Nixon for bombing Cambodia, Jefferson for the Louisiana Purchase, Jackson for the "trail of tears", Lincoln for ending habeas corpus, Reagan for Iran-Contra or Bush II for approving enhanced interrogation techniques.

Nor has any presidential historian ever found any president who deemed this a risk.

This is not because no former president has ever before been indicted. 

To the contrary, until now everyone assumed that presidents, like everyone else, were governed by the nation's criminal laws, had to follow those laws on and off the job, and could be held accountable if they violated them.  Former President Ford confirmed that understanding when he gave Richard Nixon a pardon for any crimes Nixon had committed during his presidency. And the Supreme Court said as much in Nixon v. Fitzgerald when it both carved out an immunity against charging former presidents civilly for official acts they undertook in office but clearly noted the same would not apply in criminal cases. 

To cure this non-existent problem, the Court held, presidents from this point forward will now enjoy some form of absolute or presumed immunity.

For acts within "his exclusive sphere of constitutional authority," the President will be "absolutely immune." For "official" acts outside that sphere, he will enjoy either absolute or presumed immunity. It will be absolute "unless the Government can show that applying a criminal prohibition to that act would pose no 'dangers of intrusion on the authority and functions of the Executive Branch.'"

Though this standard seems clear as stated, Roberts spends two-thirds of his opinion offering guidance on what it means and how it should be applied . . .

Making it anything but.

In fact, we are in a brave new world.

Courts will first have to determine whether an act is within a president's exclusive sphere. Assuming it isn't, they will then have to decide if the act was official or unofficial. If unofficial, there is no immunity.  If official, however, the act is presumptively immune. To overcome the presumption, the Government will then need to satisfy the no danger test.  Critically, the Court stated that "in dividing official from unofficial conduct, courts may not inquire into the President's motives."  Nor, it said. "may courts deem an action unofficial merely because it allegedly violates generally applicable law." (Later in its opinion, the Court also decided that, in this case, evidence in the nature of "official conduct" could not even be used to prove Trump's motive or mens rea.)

In support of this three-part test, Roberts notes that examples of exclusive presidential authority include the pardon power, the power to remove and supervise federal officials acting on his behalf, and the power to recognize foreign countries. Official acts, he explains, are those for which the Constitution or statutes provide authority.  Because, however, the President's "discretionary responsibilities" are broad and some acts (like "speaking to and on behalf of the American people") are official even absent specific authority, Roberts concludes that "immunity extends to the 'outer perimeter' of the President's responsibilities, covering actions so long as they are 'not manifestly or palpably beyond [his] authority'"

The indictment of Trump charges him with attempting a coup by falsely claiming he won the 2020 presidential election and then attempting to enlist the Justice Department, the Vice President,  numerous state officials and others in support of his effort to reverse the results by falsely claiming fraud, finding votes that did not exist, creating fraudulent slates of electors in a number of states, demanding that the Vice President reject legitimate electoral votes on January 6 and inciting the Capitol riot that same day to force that result.

Though the Court remands the case back to the district court to determine which parts of that indictment, if any, can move forward, its capacious definition of official acts and "no danger" test make it highly unlikely that anything will survive.  Indeed, in his ten pages of specific "guidance" on how the Court's new immunity rule might apply to the actual indictment, Roberts basically lays out a road map to immunity. 

On the indictment's charge that Trump tried to use DOJ attorneys to "convince certain States to replace their legitimate electors with Trump's fraudulent slate" -- all of which the DOJ refused to do -- the Court notes that these allegations involved Trump's official use of power. To drive the point home, Roberts spends two pages going on about the executive's authority to investigate, prioritize and  prosecute crime, and the president's "unrestricted power" to remove officials.

On the charge that Trump tried to force the Vice President to reject legitimate electoral votes, Roberts spends three plus pages laying out the Vice President's role as successor and adviser to the President. "Whenever the President and the Vice President discuss their official responsibilities," he offers, "they engage in official conduct." 

On the charge that Trump conspired to create fraudulent slates of electors, the Court said "determining" whether this was official or unofficial conduct "requires a close analysis of the indictment's extensive and interrelated allegations."  On the charge that his rally speech on January 6 and tweets beforehand incited the riot that then occurred, the Court said that this too was "factbound".

As far as I can tell, the Supreme Court has decided that Trump cannot be prosecuted for, nor can any evidence be admitted of, any of the indictment's alleged interactions between him and DOJ attorneys or between him and Pence.  To the extent his communications with state officials fall within a generic right to officially comment on federal elections, or his rally speech and tweets are outgrowths of every presidents "long recognized" use of the "bully pulpit to persuade Americans . . . in ways the President believes would advance the public interest", these acts would also be beyond the reach of the criminal law.

That Trump actually lied about the results of the election and the absence of  any outcome-determinative fraud, actually intended to remain in office despite losing, actually solicited or approved his agents' solicitation of fraudulent electoral slates to do so, actually demanded that his Vice President spearhead an 11th hour unconstitutional coup and actually encouraged his supporters to engage in a putsch . . .

Does not matter to six members of this Supreme Court.

All of whom were appointed by Republican presidents.

Five by Republicans whom the majority of Americans voted against.

Trump v. United States will go down in history as one of the four worst decisions ever made by the Supreme Court.  The other three are Dred Scott v. Sanford, Plessy v. Ferguson and Lochner v. New York. In Scott, the Court held that Congress could not ban slavery in the federal territories.  It led almost directly to the Civil War.  In Plessy, the Court bastardized the 14th Amendment by allowing the de facto re-enslavement of blacks under the legal myth of separate but equal. It basically reversed the results of the Civil War. And in Lochner, the Court turned industrial capitalism into a killing field by allowing the abuse of children under the guise of the Constitution's contracts clause. It crippled Congress' ability to regulate the profit motive run amok.

The only bright spot in this otherwise dark and dangerous moment is this:

Disastrous decisions often beget prescient dissents.  

In Plessy, there was John Marshall Harlan.

In Lochner, Oliver Wendell Holmes, Jr.

And in Trump v. United States,  there is . . .

Sonia Sotomayor.

In her eloquent dissent, Justice Sotomayor eviscerates the Chief Justice's opinion. After laying out the indictment's "stark portrait of a President desperate to stay in power," she begins: "The Court now confronts a question it has never had to answer in the Nation's history: Whether the former President enjoys immunity from federal prosecution.  The majority thinks he should," she continues, "and so it invents an atextual, ahistorical and unjustifiable immunity that puts the President above the law."

"Argument by argument," she notes, "the majority invents immunity through brute force. Under scrutiny the arguments crumble . . . [T]he majority's broad 'official acts' immunity is inconsistent with text, history and established understandings of the President's role. [I]t is deeply wrong even on its own functional terms. Next, the majority's 'core' immunity is both unnecessary and misguided. Finally, the majority's project will have disastrous consequences for the presidency and our democracy."

Sotomayor justifiably upbraids the Roberts six for their transparent hypocrisy.  

Though the majority calls for "a careful assessment of the scope of Presidential power under the Constitution," she writes, that "careful assessment does not involve the Constitution's text," which "contains no immunity from criminal prosecution."  Laying out the wealth of historical evidence refuting any notion of criminal immunity, she concludes, citing the Dobbs  decision eliminating the right to abortion and the Bruen decision establishing the right to carry a concealed weapon, "It seems history matters to this Court only when it is convenient."

Text, history and hypocrisy aside, however, the "disastrous consequences for the presidency and our democracy" form the backbone of Sotomayor's dissent.  

At base, she notes, the Court has granted absolute immunity to any official presidential act. The Court claims otherwise but the "no danger" test for overcoming presumptive immunity eliminates that possibility.  "It is hard to imagine a criminal prosecution for the President's official acts that would pose no danger of intrusion on Presidential authority in the majority's eyes," she explains, and because "any incursion on Executive power is too much" under the majority opinion, whether immunity is absolute or presumptive "hardly matters."  In fact, the imposed test "narrows the conduct considered 'unofficial' almost to a nullity." And when the majority's additional rule precluding inquiry into motive is added to the mix, "any use of official power for any purpose, even the most corrupt purpose indicated by objective evidence of the most corrupt motive and intent, remains official and immune."

In laying out the risks the majority pretends to protect against, the Sotomayor dissent unearths the fictional world in which the majority actually resides.  In that world, the president cannot dare to be bold or "'deal fearlessly or impartially' with the duties of his office" if he is held accountable for his crimes. "If that is right," says an exasperated Sotomayor, "it is a distortion that has been shaping Presidential decision-making since the earliest days of the republic." Because, from the beginning in 1787, "every sitting president has so far believed himself under threat of criminal liability after his term in office."

It is, of course, not right. 

Presidents have not found it difficult comply with the criminal law and do their job at the same time.  No one -- save Trump -- has even been charged after he left office; the only one who came close resigned and was pardoned. Any who are (including Trump) have available the full panoply of "robust procedural protections" that make base or frivolous allegations dead on arrival. And as for serious allegations, it is hardly chilling to require that the person sworn "to take care that the laws be faithfully executed" at the very least avoid violating the ones that are crimes.

The Supreme Court has laid waste to that bedrock requirement inherent in the rule of law.  

As Sotomayor starkly warns: "The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding."

"This new official acts immunity now 'lies about like a loaded weapon' for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the nation."

"The President of the United States is the most powerful person in the country, and possibly the world. When he uses his power in any way, under the majority's reasoning, he will now be insulated from criminal prosecution."

"Orders the Navy Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune.”

"Immune. Immune, Immune."

"In every use of official power, the President is now a king above the law."

Tomorrow is the Fourth of July.

I would table the fireworks.

A laughing George III is nothing to celebrate.