I had no idea that you, Noah, we’re so biased against Trump, and so blinded by partisanship.
You keep saying that Trump should have been dealt with politically through impeachment; well he was, twice, and he was acquitted twice, but apparently that’s not good enough for you.
You ignore everything that was done to Trump to impair his presidency. You’re silent about the legal double standard that is damaging our nation, and then you digress about a German NAZI. Get out of your bubble, and put your country first, instead of your political party.
I will, of course, protest that I am neither biased nor blinded, but rather that I see things differently than you do -- honestly differently. But of course, I can't prove that to you; I can only observe what I see and report my understanding thereof as best I am able.
If you believe that those who acquitted President Trump after his second impeachment genuinely believed that he was not guilty, either because he didn't do the things that were alleged or because the things that were alleged did not rise to the level of high crimes and misdemeanors, then I would agree with you. The matter was dealt with politically, and Trump was acquitted at trial. We should all move on.
But I do not believe that the record supports such an interpretation. Multiple Republican senators -- including the Majority Leader -- said in so many words that they *did* think Trump was guilty, but that they either lacked the jurisdiction to try a no-longer sitting president, or that they felt it would be better for the political system if the impartial judicial branch dealt with the matter. If I am correct that this is why they voted to acquit, then the matter was *not* dealt with by the legislature; rather, the legislature punted to the judiciary, leaving us precisely where we are now. I would encourage you to revisit their statements at the time and see whether you agree or not.
By the way, I went back to check what I myself wrote at the time, in my capacity as a columnist at The Week. The relevant columns are here (https://theweek.com/articles/959763/legislature-fight-back) and here (https://theweek.com/articles/966412/trumps-acquittal-not-foreordained). The first argues that it was essential for the integrity of our constitutional system that the legislature fight back, and the second that it was entirely reasonable for GOP senators to vote "no" on the question of jurisdiction and then, when that question was settled democratically to conclude that they *did* have jurisdiction, to vote "guilty" on the charges if they felt Trump was, in fact, guilty. So I think I'm being consistent, for whatever that is worth.
Schmittian thoughts on the latest Trump indictment
NOAH MILLMAN
AUG 8
SHARE
I haven’t said anything about the indictments of former president Donald Trump because, you know, what is there really to say? Inasmuch as they are a purely legal matter, they aren’t worth getting emotionally invested in because, as I’ve argued before in a different context, you can’t expect the legal system to deliver symbolic and moral victories. If this is a purely legal matter, then we should let the system do its work and otherwise ignore it, because a single bad verdict doesn’t touch us, only evidence of systematic perversions of the justice system. But of course, nobody is treating it like a purely legal matter. The fate of democracy and the rule of law is—in the view of many people on both sides—very much on the line. The mere fact that so many are so emotionally engaged by the indictments is proof that they are a form of politics. How could they not be?
I’ve read a handful of good pieces brooding on this fact in a common vein. I’d single out my friend and colleague Damon Linker’s piece at Notes From the Middleground, Jack Goldmith’s Op Ed in The New York Times, and especially Damir Marusic’s piece at Wisdom of Crowds. What they share is an understanding that, whether or not the prosecution of Trump is undertaken for partisan motives—and for a variety of reasons I am inclined to be charitable on that score—it is de facto a partisan undertaking, with all that implies about its unlikelihood of being seen as impartial, and thereby actually bringing closure to the breach in the body politic that Trump opened.
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There was another way, of course. Impeachment is the proper way to deal with crimes committed by the president as president, which is what the most recent and most inflammatory indictment is about. Trump was impeached after January 6th, and was acquitted by the Senate after he had left office. Senator Mitch McConnell, the GOP Majority Leader, declined to impeach a former president and said it was more appropriate for the legal system to deal with Trump’s crimes, and that’s what’s happening now. But the fact that McConnell said it doesn’t mean it’s true or even that he’s going to stick with his view that the legal system should deal with it; I assume, rather, that he will reverse himself (if he hasn’t already) and say that the prosecution is political. Which it is, unavoidably so, but that’s precisely why the Senate should have dealt with the question back when it had the chance.
The only way to deal with a criminal president is political, in other words. There is no law to appeal to that is above politics in this case because the president is the chief magistrate—only the political system as a whole can preserve itself from a corrupt or lawless executive."
It appears that you are suggesting that Trump (and every other former president) is immune from all laws -- that only the political system can do something about a former president (not clear how this works for the former is never a "current" again). Is there any law that Trump is obliged to submit to at this point in your view?
I'm sorry if I have misunderstood you. It appeared to me that you were suggesting that the criminal charges against Trump were the wrong thing to do because the issue needed to be resolved politically. Evidently, this is not what you were saying. (I'll be honest -- I don't know what your point was then.)
This is excellent, Noah--bringing up Schmitt at the end is an appropriate way to capture the fundamental, and awful, tensions of our moment. I am finding it interesting that Damon, you, and several others I follow are committing strongly to the position that the second impeachment vote was our last, best hope for avoiding the present mess; it's water under the bridge, obviously, and it's not like a unified position among the punditocracy would have changed McConnell's mind at the time, but still, it makes me wonder what might have been, if the attack on the Capitol building had managed to pull enough people together across the ideological spectrum, and there had been a stronger voice insisting upon his impeachment three and a half years ago.
Last's suggestion a pardon might be justified was short on critical details. You suggest a prospective pardon, Last was unclear on that. This is frustrating to me, because the case for a pardon is dependent on details: Before or after a conviction? Is federal office forsaken? Is an admission of guilt required?
Without terms there is no point in discussing whether a pardon would politically stabilize the nation, with the rights terms I believe it would. Disqualification from office removes only Trump, but Trump is unique. He enjoys an emotional bond with millions of people, he has built a cult of personality. Whether achieved in a plea bargain, pardon, 14th Amendment Section 3, or by losing, avoiding a 2nd Trump term stabilizes our politics all by itself. Removing Trump moderates his base because only Trump has a special genius for whipping them up.
Trump's insults and attacks are dominance displays, he is unprecedented in US history as a dominance politician. Admitting guilt and accepting ineligibility is submission. No matter how he might try to take it back his spell will be broken. Putting him in jail doesn't break the spell, he can play the martyr. But martyrs don't cut deals.
I had no idea that you, Noah, we’re so biased against Trump, and so blinded by partisanship.
You keep saying that Trump should have been dealt with politically through impeachment; well he was, twice, and he was acquitted twice, but apparently that’s not good enough for you.
You ignore everything that was done to Trump to impair his presidency. You’re silent about the legal double standard that is damaging our nation, and then you digress about a German NAZI. Get out of your bubble, and put your country first, instead of your political party.
I will, of course, protest that I am neither biased nor blinded, but rather that I see things differently than you do -- honestly differently. But of course, I can't prove that to you; I can only observe what I see and report my understanding thereof as best I am able.
If you believe that those who acquitted President Trump after his second impeachment genuinely believed that he was not guilty, either because he didn't do the things that were alleged or because the things that were alleged did not rise to the level of high crimes and misdemeanors, then I would agree with you. The matter was dealt with politically, and Trump was acquitted at trial. We should all move on.
But I do not believe that the record supports such an interpretation. Multiple Republican senators -- including the Majority Leader -- said in so many words that they *did* think Trump was guilty, but that they either lacked the jurisdiction to try a no-longer sitting president, or that they felt it would be better for the political system if the impartial judicial branch dealt with the matter. If I am correct that this is why they voted to acquit, then the matter was *not* dealt with by the legislature; rather, the legislature punted to the judiciary, leaving us precisely where we are now. I would encourage you to revisit their statements at the time and see whether you agree or not.
By the way, I went back to check what I myself wrote at the time, in my capacity as a columnist at The Week. The relevant columns are here (https://theweek.com/articles/959763/legislature-fight-back) and here (https://theweek.com/articles/966412/trumps-acquittal-not-foreordained). The first argues that it was essential for the integrity of our constitutional system that the legislature fight back, and the second that it was entirely reasonable for GOP senators to vote "no" on the question of jurisdiction and then, when that question was settled democratically to conclude that they *did* have jurisdiction, to vote "guilty" on the charges if they felt Trump was, in fact, guilty. So I think I'm being consistent, for whatever that is worth.
"
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A Trump Exception?
Schmittian thoughts on the latest Trump indictment
NOAH MILLMAN
AUG 8
SHARE
I haven’t said anything about the indictments of former president Donald Trump because, you know, what is there really to say? Inasmuch as they are a purely legal matter, they aren’t worth getting emotionally invested in because, as I’ve argued before in a different context, you can’t expect the legal system to deliver symbolic and moral victories. If this is a purely legal matter, then we should let the system do its work and otherwise ignore it, because a single bad verdict doesn’t touch us, only evidence of systematic perversions of the justice system. But of course, nobody is treating it like a purely legal matter. The fate of democracy and the rule of law is—in the view of many people on both sides—very much on the line. The mere fact that so many are so emotionally engaged by the indictments is proof that they are a form of politics. How could they not be?
I’ve read a handful of good pieces brooding on this fact in a common vein. I’d single out my friend and colleague Damon Linker’s piece at Notes From the Middleground, Jack Goldmith’s Op Ed in The New York Times, and especially Damir Marusic’s piece at Wisdom of Crowds. What they share is an understanding that, whether or not the prosecution of Trump is undertaken for partisan motives—and for a variety of reasons I am inclined to be charitable on that score—it is de facto a partisan undertaking, with all that implies about its unlikelihood of being seen as impartial, and thereby actually bringing closure to the breach in the body politic that Trump opened.
Gideon's Substack is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.
Upgrade to paid
There was another way, of course. Impeachment is the proper way to deal with crimes committed by the president as president, which is what the most recent and most inflammatory indictment is about. Trump was impeached after January 6th, and was acquitted by the Senate after he had left office. Senator Mitch McConnell, the GOP Majority Leader, declined to impeach a former president and said it was more appropriate for the legal system to deal with Trump’s crimes, and that’s what’s happening now. But the fact that McConnell said it doesn’t mean it’s true or even that he’s going to stick with his view that the legal system should deal with it; I assume, rather, that he will reverse himself (if he hasn’t already) and say that the prosecution is political. Which it is, unavoidably so, but that’s precisely why the Senate should have dealt with the question back when it had the chance.
The only way to deal with a criminal president is political, in other words. There is no law to appeal to that is above politics in this case because the president is the chief magistrate—only the political system as a whole can preserve itself from a corrupt or lawless executive."
It appears that you are suggesting that Trump (and every other former president) is immune from all laws -- that only the political system can do something about a former president (not clear how this works for the former is never a "current" again). Is there any law that Trump is obliged to submit to at this point in your view?
I'm not sure how you came to the conclusion you have by reading what I wrote. I'm afraid you've misunderstood me rather badly.
I'm sorry if I have misunderstood you. It appeared to me that you were suggesting that the criminal charges against Trump were the wrong thing to do because the issue needed to be resolved politically. Evidently, this is not what you were saying. (I'll be honest -- I don't know what your point was then.)
I regret that my purpose was so obscure that you could not discern it by reading the piece. The fault is undoubtedly mine.
I tried to only paste the last two paragraphs, but evidently copied a much larger section and am unable to edit the comment.
This is excellent, Noah--bringing up Schmitt at the end is an appropriate way to capture the fundamental, and awful, tensions of our moment. I am finding it interesting that Damon, you, and several others I follow are committing strongly to the position that the second impeachment vote was our last, best hope for avoiding the present mess; it's water under the bridge, obviously, and it's not like a unified position among the punditocracy would have changed McConnell's mind at the time, but still, it makes me wonder what might have been, if the attack on the Capitol building had managed to pull enough people together across the ideological spectrum, and there had been a stronger voice insisting upon his impeachment three and a half years ago.
Last's suggestion a pardon might be justified was short on critical details. You suggest a prospective pardon, Last was unclear on that. This is frustrating to me, because the case for a pardon is dependent on details: Before or after a conviction? Is federal office forsaken? Is an admission of guilt required?
Without terms there is no point in discussing whether a pardon would politically stabilize the nation, with the rights terms I believe it would. Disqualification from office removes only Trump, but Trump is unique. He enjoys an emotional bond with millions of people, he has built a cult of personality. Whether achieved in a plea bargain, pardon, 14th Amendment Section 3, or by losing, avoiding a 2nd Trump term stabilizes our politics all by itself. Removing Trump moderates his base because only Trump has a special genius for whipping them up.
Trump's insults and attacks are dominance displays, he is unprecedented in US history as a dominance politician. Admitting guilt and accepting ineligibility is submission. No matter how he might try to take it back his spell will be broken. Putting him in jail doesn't break the spell, he can play the martyr. But martyrs don't cut deals.