Presidential Immunity

Followers and sycophants of former president Trump, as well as Trump himself, allege that there is absolute immunity from prosecution for anything that the president does while in office. While there is no specific mention of immunity in the Constitution, various Supreme Court rulings established that a president was immune from prosecution for actions taken as part of his or her official duties, but not actions taken outside of those duties. The claims from the Trump camp are often contradictory and confusing: are they claiming that everything a president does is covered by presidential immunity? Or are they claiming that his action to overturn the election were part of his official duties? 

In general I believe that federal officials must be immune from prosecution for exercising their official duties. Virtually anything a president or Congress does will be vigorously opposed by someone. Sometimes official acts result in damage to individuals or institutions. There are so many moving parts to anything that the government does that the chances that there will be no problems or negative consequences approaches zero. Two examples of presidential decisions that went wrong are Trump's handling of Covid and Biden handling of the withdrawal from Afghanistan. Both resulted in chaos and death, and it could be argued that there were ways to address both that would have yielded better outcomes. But hindsight is usually 20/20 and it could also be argued that both of these decisions were made in good faith and that neither should suffer criminal penalties for not being fortune tellers. We elect people because we believe that they are best suited to represent us and to competently manage a crisis. Sometimes there's no 100% right answer where everybody wins. 

The alternate excuse, that attempting to overturn the election, including not just Trump's speech on January 6th, but all shenaniganesque machinations that led up to it, were part of official duties is nothing short of absurd. I've commented multiple times about the many acts that Trump took to undermine faith in the system as well as illegal end runs around that system, so I won't recap them here. But his actions certainly don't fall within faithfully executing the office of the president or preserving, protecting and defending the Constitution. 

Trump and his people like to say that he's being targeted to prevent him from being re-elected this year. In my opinion it's more a case of the chickens coming home to roost. He has spent his whole life avoiding accountability for his actions because he had enough resources to stall the legal system and wait out his opponents. He did whatever it took to secure his own paycheck. Getting elected in 2016 just made it worse. He laughed at campaign laws and welcomed assistance from Russian agents. He monetized the presidency. His final acts were an attempt to retain power. He and his cult allege that all of the indictments are the result of a hatred that Democrats have for him - frankly I don't care what the motivation is for these investigations, in each case a grand jury of ordinary citizens thought that there was sufficient evidence to indict. 

Hope there's plenty of roosts for those chickens.

Insurrectionist on the Ballot

The Supreme Court was hearing oral arguments in the case to have Trump removed from the Colorado Republican Primary ballot. The courts in Colorado ruled that Trump, having engaged in insurrection, was ineligible to be president and would be removed from the ballot. Trump appealed (of course). 

As much as it may appear obvious that Trump engaged in a months-long strategy to overturn the results of the 2020 election, and incited his followers who stormed the Capitol in attempt to stop the certification of the Electoral votes, the law isn't always as clear cut as we think it should be. I've thought all along that these attempts to get him off the ballot were based on flimsy reasoning, and that there's some question whether the Fourteenth Amendment even applies. 

The first weak point is whether or not what happened on January 6th was an insurrection. Well, there's no doubt the crowd, in some inchoate and disorganized way, wanted to stop the certification of the Electoral votes and prevent President Biden from taking office on January 20th. There's also no doubt that Trump, in his signature Henry II manner Trump incited them, notwithstanding his "patriotic and peaceful" line. There's no doubt that January 6th was the culmination of months of purposeful attacks by Trump on the reliability of the election apparatus in the country and two months of frivolous lawsuits and yes, incitement, based on nothing more than a refusal to accept his loss. So what's the problem? The United States criminal code does have a law that criminalizes insurrection:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

(June 25, 1948, ch. 645, 62 Stat. 808; Pub. L. 103–322, title XXXIII, § 330016(1)(L), Sept. 13, 1994, 108 Stat. 2147.)

Seems pretty clear, but no one has been charged with insurrection. No one. Sure, plenty of people have served or are serving prison sentences, but the most serious charges were for seditious conspiracy:

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

(June 25, 1948, ch. 645, 62 Stat. 808; July 24, 1956, ch. 678, § 1, 70 Stat. 623; Pub. L. 103–322, title XXXIII, § 330016(1)(N), Sept. 13, 1994, 108 Stat. 2148.)

Similar, but not the same. I would guess that Jack Smith thought it more likely that he could get convictions under the seditious conspiracy law than for insurrection. At first glance it seems like seditious conspiracy is broader and less likely to suffer from alternate interpretations. Who knows? At any rate, no one, including Trump, is facing a charge of insurrection. 

Other weak points is the question of whether the president is "an officer" under the meaning of the amendment. Common sense would suggest that he is, but there's enough ambiguity about that to enable the Supreme Court to gain cover for giving Trump a pass. There's also the question of whether a President takes an oath to "support" the Constitution. Most would think that's a stupid question. Of course he does. Most of us would be wrong, he takes an oath to "preserve, protect and defend" it. Same thing? Probably not to a legal nitpicker looking for an excuse to rule in favor of their patron. The fact that there is absolutely no precedent to remove a former president from the ballot, allows the Court to set the precedent (not that this court majority care a whit about stare decisis). 

Trump sycophants have plenty of illogical and irrational reasons why Trump should be on the ballot:

• It couldn't have been an insurrection, he was president; was he trying to overthrow himself?
• Nancy Pelosi (or was it Nikki Haley?) was the insurrectionist on January 6th
• He was simply exercising free speech
• The election was stolen, he was saving democracy (or the Republic, or freedom...or something)
• It was Antifa,,,it was BLM...it was the FBI...they were tourists
• BLM burned down cities, what's the big deal?

And if the case wasn't weak, or didn't allow enough wiggle room for the Trump Court to give Trump a win, you have at least two justices engaging in obvious partisanship in the their questioning. 

Trump is going to be on the ballot, he'll all but certainly be the eventual nominee, and scarily enough he might win. There's enough people who ignore or excuse his incitement of insurrection and his multitude of other facets that make him unfit, that he could pull a Grover Cleveland.

But he's still an insurrectionist.

Christian Nationalism

Instead of shunning the label "Christian Nationalist", right wingers are embracing the term, mainly due to a misunderstanding of it - whether purposely or out of ignorance.

Nationalism is not the same as patriotism. Their definitions are very close and they denote the same thing: support for one's country and its interests, but the connotation is very different. Patriotism implies a love for one's country, serving it in the military or through volunteerism, running for office or supporting candidates that will make the country better. Nationalism has some overlap, but being a nationalist rather than a patriot connotes a desire to advance a nation's interests no matter the cost and at the expense of other nations, even extending to offensive military action. A patriot believes their country is a great place to live, and is proud of being a citizen; a nationalist believes in the inherent superiority of their country and will justify any action that it takes. 

Even if one were to equate patriotism and nationalism as synonymous, adding the qualifier "Christian" or "White" does not simply mean that a Christian Nationalist is no more than a nationalist who is also a Christian or White, it has a specific meaning which is different than simply combining the definitions of the two words. A Christian Nationalist is one who believes that the nation should exclude from public life, or at least from a role in governing, those who are not Christian and remake the nation under an exclusively Christian regime. White Nationalists can be viewed as a subset of Christian Nationalists who want to narrow the franchise, not only to Christians, but only to White Christians.  

The problem that Christian Nationalists don't seem to grasp is that if Christianity and The Bible are to be viewed as the governing documents of the United States, what form of Christianity? What interpretation of The Bible? Despite the alliance of convenience forged to oppose abortion,  evangelicals barely consider Catholics as Christians. Many Christians think nothing of accusing their fellow Christians of not being true Christians, or even worshipping Satan if they disagree on what they consider key doctrinal points. So who would be part of the governing overclass in the kind of nation the Christian nationalists envision? You can wager your next paycheck that it would end up being a small, but vocal and committed minority. 

Our nation was founded with many counter-majoritarian feature built in. For a while it seemed like we were moving in a more democratic direction, but gerrymandering and ideological judges are cementing into place supermajorities of a party, the Republicans, that does not represent a majority of the people. Even when the majority of voters overwhelmingly vote in Republicans, like in my home state of Nebraska, elected office-holders attempt to institute laws that reflect what only a minority of their voters support, let alone what a majority of the whole state is in favor of. A Christian nationalist government wouldn't be that different. In fact it would have a built-in advantage over simply partisan politics, since a clear majority of the electorate still identify as Christian, even if they are not active in a church. 

When a politician brays about governing according to "Christian values" he doesn't need to get very specific in order to get even the "ashes and palms" Catholics or the occasional church goer to nod their heads in agreement. What Christian, even a nominal one, could possibly object to things being run in a Christian manner? (Which they equate with good, moral, ethical) And that's how they get people to vote for them. That's how laws get passed that little by little erode the rights of non-Christians, or even Christians who don't toe the line of the Christians in power. And there's no doubt that the ones in power won't be your friendly neighborhood pastor who preaches the Sermon on the Mount and runs a soup kitchen. It won't be the inclusive congregation who live the command to love one another and welcome LGBTQ people and immigrants. No, the ones in power will be the minority who subscribe to the fire and brimstone preachers. The ones who have no problem executing gay people, or, if they're a good mood, merely declaring them non-citizens and making them wear pink triangles; the ones who, even now, are working hard to ban books; any past trampling of rights which you thought was ancient history is now up for grabs.

For the hardcore Christian Nationalists Christianity is not a religion of peace and love, but an identity that must be fought for. It is inseparably linked with militant nationalism and tribalism. Isolationism and abandonment when our allies need us, interventionism and preemptive wars of disproportionate response when we see something we want or some Podunk country insults us. If "love thy neighbor" is observed at all, it is within the circle of other White Christians and those non-whites who "know their place" and don't get uppity. 

They're not going away any time soon.