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“#USAxAUS” by White House is in the Public Domain

National Review Attacks the Indictment

And they make an argument for lawlessness.

Steven L. Taylor
24

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“#USAxAUS” by White House is in the Public Domain

The Editors (nice dodge of not actually signing the editorial) at the National Review assert This Trump Indictment Shouldn’t Stand.

We have on many occasions condemned Trump’s appalling actions in the aftermath of the 2020 election. They were impeachable. He came close to being convicted in a Senate impeachment trial; with 57 senators finding him guilty, he was saved only by the Constitution’s two-thirds supermajority mandate for conviction and disqualification.

Now, through a special counsel it appointed for this precise purpose, the Biden Justice Department is attempting to use the criminal process as a do-over for a failed impeachment. In effect, Jack Smith is endeavoring to criminalize protected political speech and flimsy legal theories — when the Supreme Court has repeatedly admonished prosecutors to refrain from creative theories to stretch penal laws to reach misconduct that Congress has not made illegal.

In our constitutional system, Congress is trusted with the duty to check egregious executive misconduct. Its failure to convict Trump understandably galls many of his opponents — left, right, and center. This feeling is accentuated by their sense both that Trump is unfit for the presidency and that there is a very real possibility that he could be elected president again.

Hence the pressure on the Justice Department to hold Trump accountable in a way the political system did not. But criminal prosecution is an inapt substitute for the congressionally driven political process that the Constitution set up to address gross abuses of power.

There are so many things to say about this position, but let me start with the most fundamental. The impeachment process is, very specifically, a process by which an official is removed for some malfeasance while in office, with the potential additional punishment of being barred from holding federal office. It is not supposed to be a substitute for criminal prosecution. Impeachment and criminal prosecution do not serve the same function and to argue that Trump should not be prosecuted because he wasn’t impeached is a non sequitur.

Further, the notion that Trump’s actions leading up to and on 1/6 were simply political activities is dangerous and absurd. And for the editors at NR to assert such is to support and endorse Trump’s actions, even as they try to weasel their way into clinging to the notion that they have acted properly in condemning Trump in the past. If trying to subvert an election is mere politics, and if the only way to address such actions is the impeachment process, then the rule of law has no meaning.

It is often said that a perpetual motion machine is an impossibility. However, I can’t help but think if we could harness the notion that the sitting president cannot be indicted for crimes, and so the process much wait until they are out of office alongside the whiplash of then saying that once a president is out of office that it is political to seek to hold them to legal account, then we could power a small city. Moreover, to acknowledge that impeachment is political while not accepting that partisan politics blocks it from being an efficacious tool for holding partisan politicians to account is a chef’s kiss addition to the perpetual motion machine.

The willingness of so many Americans to eschew the notion of a nation of laws, not of men when it comes to the Trump presidency is utterly deflating.

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24 responses to “National Review Attacks the Indictment”

  1. Just nutha ignint cracker Avatar
    Just nutha ignint cracker

    Can we move on from the “good” Republicans/conservatives now? There aren’t any. They’re also not going away. I don’t know what to do to fix the fact of two groups with irreconcilable differences occupying the same country, but I am relieved to be too old to experience how it will end.

    Holding the Union together at all cost was the mistake.

    21
  2. Matt Bernius Avatar
    Matt Bernius

    It is not supposed to be a substitute for criminal prosecution. Impeachment and criminal prosecution do not serve the same function and to argue that Trump should not be prosecuted because he wasn’t impeached is a non sequitur.

    As has been pointed out many times this is specifically contra to what Senate Majority Leader (at the time) Mitch McConnell said at the time of the second impeachment:

    In one light, it certainly does seem counterintuitive that an officeholder can elude Senate conviction by resignation or expiration of term.

    But this just underscores that impeachment was never meant to be the final forum for American justice.

    Impeachment, conviction, and removal are a specific intra-governmental safety valve. It is not the criminal justice system, where individual accountability is the paramount goal.

    Indeed, Justice Story specifically reminded that while former officials were not eligible for impeachment or conviction, they were – and this is extremely important – “still liable to be tried and punished in the ordinary tribunals of justice.”

    Put anther way, in the language of today: President Trump is still liable for everything he did while he was in office, as an ordinary citizen, unless the statute of limitations has run, still liable for everything he did while in office, didn’t get away with anything yet – yet.

    We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one.

    source: https://www.usnews.com/news/politics/articles/2021-02-14/read-mcconnell-speech-after-trumps-impeachment-trial-acquittal

    You can’t have it both ways and you cannot pretend that this was specifically part of the argument to exonerate Trump during the impeachment hearings.

    13
  3. gVOR08 Avatar
    gVOR08

    From the NR quote,

    In effect, Jack Smith is endeavoring to criminalize protected political speech and flimsy legal theories

    IANAL but I don’t think Smith’s theories are all that flimsy. We’ll see. The extent to which we do not have clear law to cover this situation is due to the unprecedented nature of Trump’s offenses and a condemnation of our legal system, not of Smith.

    I tire of the constant drumbeat of punditry abut how risky prosecuting Trump is. Will no one recognize how risky it would be to not prosecute? A failed coup, left unpunished, is practice.

    The willingness of so many Americans to eschew the notion of a nation of laws, not of men when it comes to the Trump presidency is utterly deflating.

    Indeed. Especially the political pros, including whoever the “Editors” at NR are, who know what Trump is. But don’t have the guts to say so.

    ETA I’m in moderation. Apparently I can only go back to gVOR08 instead of the new 10 on odd number dates or something.

    2
  4. DK Avatar
    DK

    @Just nutha ignint cracker:

    Holding the Union together at all cost was the mistake.

    Disagree. The mistake was the quick and easy reconciliation: letting Robert E. Lee, Jefferson Davis, and the rest of the pro-slavery Confederate traitors die of natural causes. Georgia is just now becoming the only Deep South State showing flashes of sanity. This is no mere coincidence: Sherman et al should have been allowed to burn the entire Old South to the ground, then their representatives barred from having a vote in the Congress until 1885.

    I personally don’t find it deflating when old guard Republican editors at The National Review and the Wall Street Journal do everything but just openly admit that their belief that Trump (and conservative-approved Supreme Court justices) are above the law. It is the best validation of the decision I made over a decade ago to never vote Republican again.

    The fix is for more people to publicly declare Republican votes an anathema and the Republican Party persona non grata.

    I also do not find the lawless position taken by the corporate shill clowns at WSJ and NR a catastrophe. They’re just acting as partisan hacks — it’s not any more complicated than that. When Trump was running around calling for Hillary to be locked up over silly, irrelevant emails, they were all in. There is no principle here besides the letter behind a politician’s name. Boring and predictable.

    22
  5. CSK Avatar
    CSK

    Trump is making basically the same “argument” as are the NR editors: He was “exonerated”–his word–by the impeachment process (twice, even!), so it’s double jeopardy to indict and try him for Jan. 6.

    3
  6. Matt Bernius Avatar
    Matt Bernius

    BTW, Ken White just published a great thought piece taking apart the NR argument: https://popehat.substack.com/p/people-are-lying-to-you-about-the

    7
  7. Daryl Avatar
    Daryl

    I just cannot get around the fact that these people are twisting themselves into pretzels to defend someone who tried to overthrow our government and install himself as dictator.

    8
  8. Kathy Avatar
    Kathy

    Its hard to resist such an invitation for a reductio ad absurdum argument.

    So, if I were to contact a hit man and say “I want you to kill the National Review editors,” would that be a crime? Or could I presenta free speech defense? Don’t I have a right to wish a number of specific individuals dead for some good reason or for no reason at all?

    4
  9. OzarkHillbilly Avatar
    OzarkHillbilly

    @Daryl: What does that tell you?

    1
  10. CSK Avatar
    CSK

    @Kathy:

    Solicitation of murder for hire can get you ten years just for trying it.

    1
  11. Scott Avatar
    Scott

    It’s hard to believe that they will try the George Constanza defense: “It not a lie if you believe it”.

    2
  12. Steven L. Taylor Avatar
    Steven L. Taylor

    @Scott: Indeed. I keep hearing people wax on about his mental state. And while I get what he thought was true is relevant, I can’t help but think that if a person is repeatedly told X that that leads to some level of legal culpability.

    Surely if my accountant tells me that claiming my imaginary children on my tax form is fraud, but I insist that Ghosty is real to me, I am still getting in trouble with the IRS.

    3
  13. just nutha Avatar
    just nutha

    @Matt Bernius: Can’t have it both ways? They’ve already shown us they can–3 SCOTUS justices worth.

    3
  14. al Ameda Avatar
    al Ameda

    I too, see that NR chose to present this piece as a an ‘editiorial opinion’ which normally, in the case of a respected blog or publication, wouldn’t raise an eyebrow. But I am of the opinion that it shows that the opinionista at NR purposely declined or otherwise avoided individual attribution because the opinion is a complete embarrassment.

    2
  15. just nutha Avatar
    just nutha

    @DK: Yes. That’s an alternative theory. But who ever intended to do that? Interesting hypothetical all the same.

    1
  16. CSK Avatar
    CSK

    @al Ameda:

    That’s the way the Editors at NR sign all their pieces. Actually, most editorials anywhere are anonymous, since they’re intended to express the sentiments of a particular news medium as a whole.

    1
  17. Steven L. Taylor Avatar
    Steven L. Taylor

    @CSK: This is true and fair. Still. for something like this is feels a bit cowardly, even if it is standard practice.

    1
  18. Daryl Avatar
    Daryl

    @OzarkHillbilly:

    What does that tell you?

    Unfortunately, nothing new.

  19. Matt Bernius Avatar
    Matt Bernius

    At least one member of the NR review board has publicly dissented from this editorial:
    https://threadreaderapp.com/thread/1686788716222705678.html

    2
  20. Kathy Avatar
    Kathy

    @Steven L. Taylor:

    There must be some legal standard, even if only that a belief must be reasonable.

    If it all comes down to belief, claiming a deduction for a non-existent Ghosty would be the least of what could happen. What’s to stop me from claiming to believe bullets don’t kill people, and then shooting some former oval office occupant with orange skin and a bad combover?

  21. KM Avatar
    KM

    This is what happens when you let a narcissist or an abuser into your life – you spend more and more time justifying the dumpster fire they created because in the end, you let them do that. You didn’t have to, it wasn’t inevitable. But the leaving is hard, complicated and painful – fighting back takes effort and often culpability or guilt by association. People have to mentally justify to themselves why they bent the knee or took the path of least resistance. America as a whole is coming to terms with decades of letting this happen but Trump’s the epitome of it.

    He’s guilty AF and make no effort to hide it. They made no effort to stop him. There is a non-zero chance of a felon taking the Oath of Office in the next year. How do you justify the clearly blatant offense?

    You can’t.

    Thus any attempt to hold him accountable means holding THEM accountable. If the rule of law must go to do so, then so be it. What the opposite of fīat justitia ruat caelum? That’s where they are at – destroy what you have to, break every precious thing but do not let justice be done…… for it will need to be done on them as well.

    5
  22. DK Avatar
    DK

    @just nutha:

    That’s an alternative theory. But who ever intended to do that?

    Plenty of people. The so-called Radical Republicans — prominent among them longtime abolitionists turned powerful politicians like Rep. Thad Stevens and Sen. Charles Sumner, and Sec. of War Edwin Stanton — publicly and vigorously opposed the planned lenient postwar treatment of the Confederates. They lost that battle, I think to America’s detriment.

    This was the divide that caused first presidential impeachment in US history, after President Johnson dismissed Stanton to in part prevent him from enforcing the harsher Reconstruction policies preferred by the Radicals.

    Maybe instead of teaching Lost Cause nonsense and how the enslaved used slave skills to their benefit, we should be teaching this. Maybe we need CRT in schools after all.

    5
  23. Just nutha ignint cracker Avatar
    Just nutha ignint cracker

    @DK:

    The so-called Radical Republicans — prominent among them longtime abolitionists turned powerful politicians like Rep. Thad Stevens and Sen. Charles Sumner, and Sec. of War Edwin Stanton — publicly and vigorously opposed the planned lenient postwar treatment of the Confederates. They lost that battle, I think to America’s detriment.

    I will agree with you on this point. But it does go against Lincoln’s profession that things should progress “With malice toward none and charity to all” so I can see how Johnson’s actions triggered impeachment. Still, I have in these very threads asserted that Lincoln’s proclamation was, in fact, an error.

    Then again,

    Sherman et al should have been allowed to burn the entire Old South to the ground, then their representatives barred from having a vote in the Congress until 1885.

    (an action I would endorse, so consider who you’re siding with here 😉 ) seems drastic as an aftermath to surrendering, so I really don’t know where the mid ground is. The fact that the abolitionists basically had no unified plan for how to integrate however many former slaves it was into society–let alone whether that was even possible–is a significant shortfall. But focusing on eliminating sin–usually by legislation–has been an ongoing thematic flaw in holiness movement Christianity. Haven’t figured out the solution so far. My personal suspicion is that whatever had been decided would have been found lacking in the long run and, although I’m not a student of Reconstruction (I’m only a white kid who took the same US history courses most of us probably did), I have my suspicions that the Radicals were “writing checks their asses couldn’t cash.” You’re free to disagree. I am just nutha cracker, after all.

    ETA: And yes, we definitely need CRT in schools. (But the “corrupting young minds” part of the job was the only part of teaching I was ever interested in to begin with.)

    1
  24. Jay L Gischer Avatar
    Jay L Gischer

    I think it’s interesting that the NR guys, who aren’t dummies, think that the best foot forward on this was “he’s already been impeached and they didn’t convict him”.

    That’s a claim that does not engage at all with the facts presented in the indictment. Because they don’t want to engage with the facts presented in the indictment, it seems to me.

    So, I say this looks pretty good.

    And I would also like to note that some people chirp very loudly on one side of an issue just before the switch to the other side. The closet is a thing that describes a lot more than just gay people (but I thank them for the metaphor).

    But I do not ever imagine that a switch will flip and we will see a big shift in his support. It’s more like it will erode, and people will slowly float away from supporting him. Some will never do that, others will chirp on command, but do nothing, and maybe even vote third party, stay home, or vote for the other guy when nobody they know is looking.

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