I continue to be torn about how to cover the Trump coup attempt. On the one hand it’s ridiculous, and more and more it looks like he’s just doing it to squeeze more money out of his sheep. The Supreme Court was never going to take over the election process and declare Trump the winner just on his say-so that Biden’s votes are fraudulent. And though he’ll undoubtedly keep the charade going at least through January 6, Congress is not going to refuse to count Biden’s 306 electoral votes. I can’t even guess where the scam goes after that, but I’m sure he’ll think of something.
On the other hand, some people do believe his nonsense, and they’re starting to get violent. And while elected Republicans probably don’t believe it, 18 state attorneys general and 126 members of Congress were willing to back his claims to the Supreme Court, even though the proposed remedy amounted to the end American democracy. That all seems pretty serious, even if the claims themselves shouldn’t be taken seriously at all.
So I think I have to cover it, even though I want to stop paying attention to the has-been in the White House.
Anyway, I refuse to let it stop me from doing the thinking I want to be doing. So the first featured post this week is “Opening Thoughts About the Trump Voter”. As you know, I found it deeply disturbing that 74 million voters wanted to re-elect Trump, and I’m struggling to imagine a path that reintegrates them into the world the rest of us live in — the one with a pandemic and climate change and systemic racism. The book Democracy and Truth has given me a hint on how to proceed. This whole line of thought needs a lot more research, but I thought I’d tell you where I’m going. Let’s say that gets out by 10 EST.
“This Week in the Trump Coup” will be the second featured post. It’s basically a bunch of notes of the kind that usually show up in the weekly summary, but I’ve moved them into their own post so that they don’t take over the summary. Let’s say that gets done by noon. The summary then follows at around 1.
This week everybody was talking about the virus and the vaccines
We’re at a significant point here. On the one hand, cases, hospitalizations, and deaths are higher than they’ve ever been. The Thanksgiving holiday almost certainly spread the virus further, but that shouldn’t fully show up in the numbers until next week. Winter is just getting started, a significant portion of the population is as resistant to good sense as ever, and Christmas is coming. So over the next month or two, things look pretty grim.
Personally, I’m noticing the pandemic hitting closer to home. For a long time, I knew people who knew people who had the virus, but my inner circle was largely unaffected. Just in this last week, though, I’ve heard about infections in two households connected only by the fact that I know them.
On the sunny side of the street, there are at least two viable vaccines, one of which is already approved in the UK. Both should start getting distributed here fairly soon.
The NYT posted a gadget to estimate where you stand in the line to get vaccinated. I thought being 64 would give me some advantages, but lacking any complicating morbidities or an essential job, I fall pretty close to the middle of the pack: About 185.6 Americans are in line ahead of me. My wild guess is that I’ll be able to emerge from my hole sometime this summer.
Presidential adviser Scott Atlas has resigned. I have little to add to what Dick Polman wrote in the Pennsylvania Capital-Star:
Atlas, the White House pandemic adviser, was the ultimate MAGA appointee: ill-qualified for the job he got, woefully over his head while doing it, and people died because he did it.
At stake, in some measure, is faith in our system of free and fair elections, a feature central to the enduring strength of our constitutional republic. It can be easy to blithely move on to the next case with a petition so obviously lacking, but this is sobering. The relief being sought by the petitioners is the most dramatic invocation of judicial power I have ever seen. Judicial acquiescence to such entreaties built on so flimsy a foundation would do indelible damage to every future election. Once the door is opened to judicial invalidation of presidential election results, it will be awfully hard to close that door again. This is a dangerous path we are being asked to tread. The loss of public trust in our constitutional order resulting from the exercise of this kind of judicial power would be incalculable.
I mentioned Gabriel Sterling’s rant in one of the featured posts. But if you haven’t seen it, you really should.
The straw that broke Sterling’s back was a video circulating among QAnon supporters. Claiming to be a “smoking gun” demonstrating manipulation of vote totals, it shows Sterling’s 20-something tech “using a computer and thumb drive”.
The video is one of several that is going around on social media and being promoted by people like Rudy Giuliani as “evidence” that Biden stole the election from Trump. It’s a great example of the advantage lies have over truth. By the time you debunk one such claim, five others have sprung up. And as soon as you deal with them, somebody will repeat the first one again.
One rule of thumb eliminates a large number of such claims: If Trump’s lawyers haven’t been willing to repeat the claim in one of their 40-some lawsuits, they don’t believe it either. Anybody can rent a function room in a hotel and hold a “hearing”.
If you’re wondering why Trump is doing this when his effort has so little chance of success, all you have to do is follow the money. Trump has raised more than $200 million to “stop the steal” — money that is mostly going into a leadership PAC he can spend however he likes. The actual cost of his lawsuits is only a fraction of that.
The longer he can keep this show going, the more money he can shake out of his followers. It’s that simple.
While the rest of America debates whether to call Trump’s attempt to overrule the electorate a coup, Trumpist groups are eliminating all doubt about what they want: An Ohio group called We the People Convention took out a full-page ad in the Washington Times (a flagship conservative newspaper) asking President Trump
to immediately declare a limited form of Martial Law, and temporarily suspend the Constitution and civilian control of these federal elections, for the sole purpose of having the military oversee a national re-vote.
OK, any crazy group can publish an ad in any paper that will take their money. But recently pardoned felon Michael Flynn retweeted the ad with the comment “Freedom never kneels except for God.” If Flynn were still on active duty, he would be subject to Article 92 of the Military Code, which states that any service member who
with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against that authority is guilty of sedition
and pardons
Trump won’t admit he’s on his way out the door, but he’s preparing pardons that wouldn’t be necessary if he thought he would maintain his control over the Justice Department. The possibilities being discussed raise a lot of constitutional issues, which I discussed in one of the featured posts.
and Trump’s future
Depending on who you listen to, on January 21 Trump becomes (1) the presumptive 2024 Republican nominee, or (2) just another crackpot on the internet. I’m leaning towards (2), though his decline may take a few months to become clear.
Here’s my thinking: For the last four years, ambitious Republicans hitched their wagons to Trump, figuring that one way or the other he’d be out of the picture by 2024, and his personality cult would need a new leader. Mike Pence, Mike Pompeo, Nikki Haley, Tucker Carlson, Tom Cotton, Josh Hawley, and rest — they all saw their Trump loyalty as a path to greater things.
But if Trump isn’t going to get out of the way, or if he hopes to hand the GOP off to Don Jr. when he does finally leave, all those people have to recalculate. Maybe they don’t want to be seen as disloyal, but they also don’t want Trump to stay at the top of the Party. So they’re going to be looking for subtle ways to undermine him or upstage him.
Even for his personality cult, the shine might begin to fade. Trump’s primary virtue, from his base’s point of view, was that he could strike terror into the hearts of the liberals that MAGA-hatters think look down on them. In that sense, the ultimate source of his power has always been people like me (and probably you). But come January 21, I might still be appalled at what Trump is saying, but I’m unlikely to worry too much about him. People looking to “own the libs” will need find somebody more fearsome than a has-been we’ve already beaten by 7 million votes.
Trump’s self-pitying rant registered as pitiful instead of frightening. The speech barely touched the top headlines at most major news sites. … The tone of most media coverage was more condescending than fearful. Outrage is quickly being eclipsed by annoyance at Trump for being a pest who doesn’t know when to pack it up and go home.
Until now, identifying with Trump has made his cultists feel powerful. But not for much longer. Soon, he will make them feel even more like losers than they already do.
Meanwhile, the country is in a very bifurcated state: If you can work from home, or if you live off your investments, you’re doing quite well. In fact, you’re probably building up savings because there is so little to spend your money on.
But if you run or work at a small business that relies on face-to-face interactions with customers, you’re hurting.
Nearly 12 million renters will owe an average of $5,850 in back rent and utilities by January, Moody’s Analytics warns.
Friday’s jobs report was sobering. The pattern since the beginning of the pandemic has looked like this: Tens of millions of jobs went away in March and April, and they have been coming back since at a rate that would be phenomenal in any other circumstance.
That quick comeback seems to be over, and it ended well before the economy got back to where it was in February.
and you also might be interested in …
Maybe democracy is making a comeback.
After years of passively watching nationalist governments in Hungary and Poland undermine democratic rule, the European Union finally drew the line this year and declared that disbursements from the E.U. budget and a special coronavirus relief fund would be contingent on each member’s adherence to the rule of law.
What is Bob Dylan’s catalog of song rights worth? The exact answer is blowing in the wind, but it might be $300 million. I’m sure his financial people looked at the offer and advised him not to think twice.
According to Education Secretary Betsy DeVos, student debt forgiveness is “the truly insidious notion of government gift giving”. Free college for lower-income Americans amounts to “a socialist takeover of higher education”.
Sadly, we will no longer reap the benefits of such billionaire sagacity after January 20. Living your whole life without ever wondering how you’re going to pay for something gives you a deeper wisdom that the rest of us can’t fathom.
Back in the 70s, Italian singer Adriano Celentano noted how Italians loved American pop music, even when they couldn’t understand the words. So he wrote the catchy song “Prisencolinensinainciusol“, which is gibberish that sounds like American-accented English.
The weirdest thing is that his song doesn’t just sound like American English to Italians, it sounds like American English to me too. It’s gibberish, but it’s clearly an American flavor of gibberish. I would love to hear a linguistics expert explain how that works.
Republican officials who want to recognize reality, do their jobs, and follow the law are finding themselves branded as Republicans In Name Only.
Early in the classic movie A Man for All Seasons, Thomas More is arguing with zealous young William Roper about the importance of the Law. Roper asks whether More would extend the benefits of the law even to the Devil himself, and More turns the question around: “What would you do? Cut a great road through the law to get after the Devil?” Roper allows that this would be a fine idea, that he would be willing to “cut down every law in England” in order to pursue the Devil. And More responds:
And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then?
For decades, Republicans have been motivating their base voters by dabbling in fantasies and conspiracy theories. But they have always imagined that the craziness could be put back in its bottle after it had served its purpose. In the waning days of the Trump administration, however, the fantasy world has taken over and demanded fealty. Republican officials who want to recognize reality, do their jobs, and follow the law are finding themselves branded as villainous turncoats, Republicans In Name Only.
Few in the GOP have the courage to stand up to that pressure. A Washington Post survey this week found that only 25 Republicans in Congress (later rising to 27) are willing to admit that Joe Biden won the election.
Two Republicans consider Trump the winner despite all evidence showing otherwise. And another 220 GOP members of the House and Senate — about 88 percent of all Republicans serving in Congress — will simply not say who won the election.
25, wow! I am surprised there are so many. We have just begun to fight. Please send me a list of the 25 RINOS.
And it’s not just the Stolen Trump Victory fantasy, it’s also the Covid Isn’t a Big Deal fantasy. Ohio’s Republican Governor Mike DeWine is facing calls for impeachment from his own party, because he insists on taking action to save his citizens’ lives. Viewed from the Conservative Fantasy World (CFW), his attempt to slow the spread of a deadly virus
promotes fear, turns neighbors against neighbors, and contracts the economy by making people fearful to leave their homes.
Other Republicans have taken note. South Dakota’s Governor Kristi Noem has seen Covid burn through her state like a wildfire through a dry grassland, and done essentially nothing to stop it. With visions of national office, Noem does not dare tie herself to reality.
At the end of the Trump administration, the CFW is not just one or two fantasies, it is many: Antifa is burning down our cities! Hunter Biden did [I can never quite figure out what]! The Deep State invented the Russia hoax! Joe Biden has dementia! The DNC server is in Ukraine! Bill Gates is trying to micro-chip us all! Anti-Covid restrictions are a plot against religion! Democrats are protecting an international pedophile ring! George Soros is financing a migrant caravan invasion of our country!
It’s not just an occasional rabble-rousing slogan any more, not just a Willie Horton ad or a food-stamp-lobster story that can be set aside after the inauguration. Republicans now live in a 24/7 fantasy world, and if anyone attempts to leave it, there are consequences.
As in the extreme branches of Islam, apostasy will not be tolerated. And the apostate cannot seek the protection of facts or logic or law, because in the zealous pursuit of liberal devils, all those barriers have been cut down.
In the CFW, however, Trump did not lose by seven million votes nationwide, but in fact won a resounding landslide. If only “legal” votes were counted, Trump would win 410 electoral votes, carrying even California. Former three-star general and pardoned felon Michael Flynn recited the catechism:
There is no doubt in my mind that he won this election. Hands down. In a landslide. I believe that at the end of the day we’re going to find out that he won by a massive landslide and he’ll be inaugurated come this January.
That landslide victory has to include Georgia’s 13 electoral votes, so anyone involved in verifying the vote totals or certifying the election must be part of the Biden Steal, including Kemp, Raffensperger, Republican state election official Gabriel Sterling, and a 20-year-old computer geek working for Sterling. All of them, including the 20-year-old, have been getting death threats. This set off Sterling, who delivered an epic rant (video, transcript).
Joe diGenova today asked for Chris Krebs, a patriot who ran CISA, to be shot. A 20 something tech in Gwinnett County today has death threats and a noose put out, saying he should be hung for treason because he was transferring a report on batches from an EMS to a county computer so we could read it. It has to stop. Mr. President, you have not condemned these actions or this language. Senators, you have not condemned this language or these actions. This has to stop. … This is elections. This is the backbone of democracy. And all of you who have not said a damn word are complicit in this. It’s too much.
The “senators” he is addressing are David Perdue and Kelly Loeffler, the ones involved in the January 5 runoffs, where Republicans need to win at least one seat to retain control of the Senate. Both are in a tricky position that prevents them from upholding reality, or even denouncing the threats of violence against fellow Republicans. They need the full support of Trump’s personality cult if they’re going to win their elections. But they also need the suburban voters who did in fact put Biden over the top last month.
At a time when Republicans need to unite, they are attacking each other. They are also asking their voters to believe contradictory things: Trump is going to win a second term, but Perdue and Loeffler need to win to keep President Biden from having a Democratic Senate. Republicans should come out and vote, even though the rigged voting machines will flip their votes to Democrats.
How did this happen? The Republican reliance on fantasy has grown tremendously in the last four years, but it didn’t start with Trump.
The uninsured can get the medical care they need in the ER.
Tax cuts pay for themselves.
Gays can be “cured”.
Obama’s election proved that racism is over.
Of course, even then that was far from a complete list. “People who work hard aren’t poor,” is a perennial favorite, and you can always find some (white, of course) Republicans ready to tell you that slavery wasn’t really so bad. An entire genre of fantasy falls into the form “The real victims of discrimination are X” where the choices include all manner of privileged groups: men, whites, Christians, straights, and so on. And who can forget the Atlas-Shrugged vision of the productive rich, whose largesse provides for the rest of us by “giving” us jobs?
In addition to fantasies about how the world works, the CFW has included fantasies about events, like Saddam’s mobile chemical-weapons labs, the Benghazi stand-down order, Barack Obama’s birth in Kenya, and ObamaCare’s death panels.
The CFW is marked as much by what it leaves out as what it invents. Global warming isn’t real, and neither is systemic racism. Science has no more claim to authority than any other belief system, and evolution is “just a theory”. The human failings of the Founders have been airbrushed away, as have any unworthy motives behind American wars, or any economic contributions made by undocumented immigrants.
Trump’s advantage. None of that is new. But the key insight of Donald Trump, the one that allowed him to push aside so many better qualified and better connected Republican rivals in 2016, was that the balance of power between Fact and Fantasy had decisively shifted in favor of the unreal. Pre-Trump Republicans had treated the CFW the way an imperial power treats a colony: They went there when they needed something, like votes or campaign contributions. But when it was time to staff a government, Republicans like the Bushes or McCain or Romney would draw from the same expert class Democrats did. Considerable effort might go into explaining policy in fantasy-world terms, but the behind-closed-doors discussions that shaped those policies happened in the real world.
And don’t think that the full-time denizens of the CFW didn’t notice. They may be deluded, but they’re not stupid. They understood very well the phoniness of reality-based Republicans who merely humored them. Trump, on the other hand, stood out as more authentic, precisely because he had given himself whole-heartedly to the fantasy.
TrumpWorld. In exchange for his undivided loyalty to the fantasy other Republicans only exploited, the true-believing base awarded Trump the power to define that fantasy. Today, the CFW is what Trump says it is. If Trump’s ego will not allow him to face his defeat, then he didn’t lose. Anyone who says he did is a RINO, and any media outlet that reports the facts is Fake News. In the absence of any reliable independent source of information, any story is as good as any other. The only difference is who you trust and what you want to believe.
This kind of loyalty is an asset beyond the dreams of Ronald Reagan or George W. Bush. But unfortunately for those Republicans who have hitched themselves to Trump’s CFW-defining power, he does not believe that he is hitched to them. He cares nothing for how loyal you have been in the past, but only about whether you support what he is saying now. If you don’t, he will turn ’round on you.
And how will you stand upright in the winds that blow then?
Throughout his administration, Donald Trump has tested the limits of presidential power. On his way out the door, he is testing the limits of the pardon power.
So of course the White House had not a word to say about any of that. Instead, the President’s attention was absorbed by more pressing problems: the continuing failure of his attempts to overturn the election he lost by seven million votes, and the criminal exposure he and various members of his family and his administration might face come January 21, when he no longer has the power to restrain the career investigators and prosecutors in the Department of Justice.
All of that may yet come to nothing; Trump frequently is said to be thinking about some action that never happens (like releasing a healthcare plan). But given the approaching deadline, it’s worth considering what he can actually do.
Article II. The President’s power to pardon is established in Article II, Section 2 of the Constitution:
The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
That sounds pretty sweeping, but as so often is the case in constitutional law, nearly every word inspires entire articles of analysis. That said, there is one clear limit that just about everyone agrees on: “Offenses against the United States” means federal crimes only. So a presidential pardon won’t protect against prosecutions for violating state laws, or against civil lawsuits.
Self-pardons. But that brings up the issue of a self-pardon, which is untested in American law because no previous president has ever tried such a thing. Examined naively, the Article II text would seem to support the idea; it just says “power to grant pardons” with no exceptions other than impeachment.
But North Carolina Law Professor Eric Muller has an interesting interpretation, which ought to appeal to the conservatives on the Supreme Court who claim [3] to believe in Originalism: He can’t find 18th-century usages of grant as a reflexive verb. In other words, one party “grants” something to another; but nobody ever “grants” something to himself.
in the time period from 1750 to 1800 … [t]ransitive uses of the verb—“grant me,” “grant him,” “grant her,” “grant us,” “grant you,” and the like, where the person receiving the grant is different from the person doing the granting—are all common. But reflexive uses, where the person doing the granting is also the person on the receiving end? All but nonexistent.
Leading to the conclusion:
Can Donald Trump pardon himself? Perhaps, but that’s not the question the Constitution requires us to ask. Can Donald Trump grant himself a pardon? The evidence, at least according to the text of the Constitution and its original meaning, says no.
Harvard Law Professor Lawrence Tribe made a similar point to MSNBC’s Lawrence O’Donnell, and added that Article II also stipulates that the President “shall take care that the laws be faithfully executed”. If presidents could pardon themselves, they would instead be exempt from all federal laws — something the Framers clearly did not intend. The King of England might be above the law, but the President of the United States should not be.
We know that the Framers did not bother saying that the president cannot grant himself a pardon, because no one in their right mind would have imagined otherwise.
Specificity. Another problem of constitutional interpretation involves the word pardon itself. What did the Framers think it meant? University of California Law Professor Alan Rappaport argues that the Framers would have seen a pardon as a very specific reprieve from a specific violation of the law.
Most importantly, the Framers would have understood that pardons must be issued for specific crimes. They were not intended to be broad grants of immunity, get-out-of-jail-free cards bestowed by presidential grace.
This would call into question the Flynn pardon, which mentions the specific crime he pled guilty to (lying to the FBI), but also claims to cover
any and all possible offenses arising out of facts and circumstances known to, identified by, or in any manner related to the investigation of the Special Counsel, including, but not limited to, any grand jury proceedings in the United States District Court for the District of Columbia or the United States District Court for the Eastern District of Virginia.
Can such a “broad grant of immunity” really be valid, when President Trump himself may not know exactly what crimes he has put beyond the reach of legal accountability?
a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9,1974.
Well OK, then: If Nixon’s pardon is valid, then Flynn’s should be also. But is Nixon’s pardon valid? It was respected, in the sense that nobody put Nixon on trial. But precisely because Nixon’s pardon was never challenged, no judge has ever ruled on its validity.
So if Flynn has committed some crime “related to the investigation of the Special Counsel”, but not specifically identified in his pardon, the next Attorney General will have the option to indict him for it. During the subsequent trial, Flynn could ask the judge to throw out the indictment, because he had already been pardoned. But that motion would have to make its way up to the Supreme Court, because there is no compelling legal precedent for a lower-court judge to cite.
Trump family members might find themselves involved in some similar proceeding. If, say, Don Jr. gets a pardon vaguely immunizing him from anything he may or may not have done, what happens if he is prosecuted for lying to the Senate Intelligence Committee?
If vague, sweeping pardons aren’t valid, Trump’s other option is to list the crimes his children and close associates might be prosecuted for. While this would quite likely be legally valid, it would essentially be an admission of guilt. Such pardons would start to resemble the truth-and-reconciliation model, where crimes committed by an outgoing regime are excused in exchange for a full accounting of them.
Can a pardon itself be a crime? Yes. In his Senate confirmation hearing, Bill Barr admitted that offering a pardon in exchange for false testimony, or for refusing to testify, would be obstruction of justice.
So while the pardon itself might be valid, the President might commit a new crime by granting it.
In his recent book Where Law Ends, Mueller investigation veteran Andrew Weissmann says that Trump’s public praise of Paul Manafort (in particular for refusing to “break” by cooperating with the Mueller investigation, in contrast to Michael Cohen, whom Trump characterized as a “rat“) amounted to dangling a pardon in exchange for his silence. George Packer’s review of Weissman’s book summarizes:
[Manafort’s] lies were encouraged by the president, who made sympathetic noises about Manafort with the suggestion that stonewalling might earn him a pardon. Trump’s pardon power was an obstacle that the prosecutors didn’t anticipate and could never overcome. It kept them from being able to push uncooperative targets as hard as in an ordinary criminal case.
Similarly, the Flynn pardon and the commutation of Roger Stone’s sentence could be interpreted as obstruction.
Side-effects of pardons. Even if Trump’s family and associates have valid pardons, Congress may decide that it wants to know what happened during the various events they might have been prosecuted for. (What exactly was Rudy doing in Ukraine, anyway? When Flynn talked to the Russian ambassador, what instructions, if any, had Trump given him?) So the pardon recipients might be called to testify before congressional committees.
If they are called, they will have no Fifth-Amendment rights to invoke, because they can’t be prosecuted for crimes that have already been pardoned. If they refuse to testify without invoking a valid privilege, they can be cited for contempt of Congress (which a Biden-appointed US attorney might see fit to prosecute). If they testify and lie, that would be a new crime not covered by their pardons.
Not the end of the story. Ordinarily, a pardon is the end of the story: You did something; you were accused and possibly convicted of it; but a pardon wiped the slate clean and the credits roll.
The pardons Trump is considering, on the other hand, might just be another link in the chain of events. Depending on what Biden’s appointments at the Department of Justice decide [4], investigations and prosecutions could still happen, and the Supreme Court would have some important decisions to make.
And whatever the courts decide, Congress could still investigate, and Trump’s various obstructions of justice could still unravel.
[1] Combined with the previous commutation of Roger Stone’s sentence, the Flynn pardon ties up one of the few remaining loose ends in Trump’s obstruction of the Mueller investigation. The only remaining loose end is Paul Manafort, who quite likely will get his own pardon soon. The 2016 Trump campaign connected to Russia in three main ways, and the Mueller investigation ran aground when it couldn’t get the cooperation of Manafort, Stone, and Flynn.
The emails that Russia hacked from the Democratic National Committee were given to WikiLeaks. Trump associate Roger Stone appeared to have advance knowledge of what was in them and when they would be released. How the Russia-WikiLeaks-Stone-Trump pipeline worked has never been explained.
Michael Flynn was convicted of lying to the FBI about his conversations with the Russian ambassador during the Obama-to-Trump transition. Flynn and Jared Kushner reportedly were trying to set up a “back channel” to Russia that would circumvent US intelligence agencies. What that was for and what Trump knew about it has never been explained.
[2] Just a suggestion: Don’t forget Melania, Don. You do not want her flipping on you.
[3] I think Originalism is a rhetorical device they use when it’s convenient, not set of principles they actually believe. One key example: There is no way the Framers intended the Bill of Rights to apply to corporations.
[4] So far, Biden and Harris have been saying exactly the right things: Whether or not to prosecute Trump-administration crimes will be decided by the Justice Department, which will regain its independence from political meddling.
Our Justice Department is going to operate independently on those issues, how to respond to any of that. I am not going to be telling them what they have to do and don’t have to do. I am not going to be saying, go prosecute, A, B, or C.
On the one hand I missed a lot, but on the other it was all fairly predictable: Covid has continued to rage out of control. Biden has been saying sensible things and appointing well-qualified people to his administration. Trump’s I-won-the-election claims have gotten more outrageous as the door closes on his coup attempt. And while he won’t recognize that he’s leaving the White House, he’s working on pardons to immunize allies and relatives who would otherwise have legal vulnerability when he’s not there to hold back the Justice Department.
There are two featured posts this week. The first is a note on pardons that grew too large for the weekly summary. There’s just too much to cover, and it involves some interesting (to an amateur law geek) points of constitutional interpretation about self-pardons, preemptive pardons, pardons to obstruct justice, and so on. So “Pardons and Their Limits” should be out between 9 and 10 EST.
The second examines the internal Republican strife that has been breaking out since the election: Republican officials and judges who are trying to maintain contact with reality and stay on the right side of the law are running afoul of the true believers in the MAGA fantasy world. In Georgia, Republicans are bashing each other when they need to be uniting behind their candidates in the upcoming Senate runoff elections. This conflict has deep roots: For decades establishment Republicans have believed they could exploit the fantasies of their base, and then put those conspiracy theories back into their bottles when it came time to govern. But now the fantasy world is demanding loyalty and punishing those who deviate.
That post is “Republicans Are Reaping the Whirlwind”, and it may not be out until noon or so.
Finally, the weekly summary covers the virus and the vaccines, the Supreme Court’s about-face on restricting church services, Biden’s appointments, and a few other stories. That should be out a bit later than usual, maybe in the 1-2 range.
The Weekly Sift 
