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Wednesday, November 02, 2016

Two Queries Posted on Conlawprof: Comey, Trump, and the President (with addendum)

I posted these two queries on Conlawprof (a listserv populated mostly by legal academics):

I am wondering if the deeply held views expressed on this list are, in fact, deeply held. Any number of people on this list have expressed the view that Trump is dangerous, and if elected, there is a reasonable likelihood that he will plunge the country into destruction. If you believe that, can you describe what you have done (if anything) to prepare should that eventuality come about? And should Trump be elected, what immediate actions will you take in consequence of those changed circumstances? [Addendum: Have you given a half, third, quarter, yeaeven a tenth—of your worldly assets to Hillary Clinton, parties, and organizations dedicated to defeat Trump?] Have you moved any of your liquid assets abroad or into foreign currencies? Have you applied for academic or other positions abroad? Have you considered sending your children abroad to be educated? If you have not done anything to date, and if you don’t have any concrete extant plans to take such actions (should Trump win on November 8, 2016), then should not a detached neutral observer conclude that you do not really believe that Trump is a genuine threat? If Trump is a sociopath, should you not be doing something concrete now, other than writing words on Conlawprof and in other fora? 


I see no real willingness among those opposed to Comey’s decision to apportion any blame on the President. The President chose Comey as his FBI director; the President has a continuing duty to supervise his subordinates (particularly political appointees); the President could countermand Comey’s decision. The President has not done the latter; rather, he has expressed continuing confidence in Comey. So if you are going to criticize Comey, why are you reluctant to criticize the President? If Comey’s decision here is a catastrophic or impeachable misjudgment, then the President shares in that continuing wrong—as long as he stands by Comey. And he is standing by Comey.

If you agree that the President Obama bears political responsibility for Comey’s actions, then perhaps those many people who voted for Obama and recommended that others vote for Obama might be a bit circumspect in regard to making new recommendations today? Or, at the very least, they might explain where they have loudly protested President Obama’s role in what has come about. 

[in a reply to a response on Conlawprof, I wrote:]

You are mistaken: I have not criticized anyone’s motives. I have criticized their reasoning, and in order to take the sting out of my criticism (so that argument might be had on a more abstract & intellectual plane), I refrained from naming names.

First, I am sure that moving assets around in 1976 Peronist Argentina must have been very difficult, if not impossible. But that is not a problem today in the U.S. (at least not yet). Any number of people on this listserv hold mutual funds holding a diversified portfolio of US equities, and/or US bonds, and/or other US-based assets. Now Trump is about even in the polls—so there is some real non-negligible chance he might win. And some of the members of this listserv believe Trump will take the country into a destructive war and/or tank the economy. If that is so, these people should call their mutual fund account manager and move their liquid assets abroad, into foreign equities, into foreign bonds, and into other foreign assets. Many of us can bypass our broker and do this online. It strikes me that if no one on this listserv has recently shifted their assets in this manner, then they cannot really believe that Trump poses an existential threat of a magnitude or type different from Hillary Clinton and other candidates past and present. Why? Because if they did believe that Trump was such a threat, then they would take action now, or at least, they would already have made concrete plans which they could put into motion should Trump prevail.

Second, America has a deep history of volunteer culture. During the Civil War—many Americans believed their country faced an existential threat and therefore, they volunteered to serve in the military at the risk of their lives. If Trump posed a similar threat, and if people on this listserv really believe that, I would expect that they would make some proportionate sacrifice corresponding to the gravity of the situation. Has anyone on this listserv donated ½ his assets or income to the Clinton campaign, the Democratic party, and other organizations pledged to stop Trump? No, not a ½? Perhaps 1/3? A ¼? A 1/5? Yea—even a tenth of all that one has? If these people have made no such sacrifice, perhaps it is fair to conclude that they do not really believe that Trump is an existential threat? They choose to make no personal sacrifice precisely because they do not genuinely believe that any sacrifice is needed. Ockham's razor. 

As long as we are discussing personal experience. I am an American. I moved my family to Ireland for an academic post. It was not easy to make a new life for myself as a migrant with a green card. A few months ago, I sent my eldest child back to the US for a year’s education, as I was not fully satisfied with what is provided here for 11th graders (the so-called “transition year”). Sending your children abroad and beyond your immediate protection is difficult, but it can be done. It is difficult, but manageable. However if I genuinely believed that Ireland was about to be taken over by a “sociopath”, all my children would be out of here on the next plane. If you believe Trump is a “sociopath” and have done nothing substantial to protect yourself and your family (except to write words on Conlawprof and other similar fora), then exactly who is the “sociopath”? It seems more sensible to believe that the claims of Trump being a “sociopath” are not genuinely held (but function as normal political hyperbole) or that the proponents of this view have not thought it all the way through, and if so, their views are properly discounted until such a time as they do think them through.

Again, I have not criticized anyone's motivations. Have you? 

[and in a third query, which I have not yet posted on Conlawprof, I wrote:]

In Slate, Professor Amar writes:

[T]he rule of law is imperiled by punishing people who are not guilty; the rule of law is violated when the prosecutor-in-chief (also known as the president) pronounces a person guilty by name when the facts utterly fail to support this smear; the rule of law is in mortal danger when an overheated crowd roars, as it did in Phoenix, “Lock her up!” This is news not because it has not happened before, but because it is still happening—and getting worse.

Akhil Reed Amar, Comey Is a Constitutional Lightweight, and Donald Trump Remains the Only Scandal Worth Talking About, Slate (Oct. 31, 2016, 2:43 PM),

Trump is not part of the administration; he is not a government official. And (I expect) the same applies to the great majority of the overheated” crowd. So isn’t everything said here just constitutionally protected speech? How could constitutionally protected speech endanger the rule of law? It is a real puzzle.


Twitter: ( @SethBTillman )  

Seth Barrett Tillman, President James Buchanan, Chief Justice Roger Taney, Copperheads—and the Quakers, The New Reform Club (Oct. 30, 2016, 7:44 AM). [Here


JK Brown said...

I believe the professor might want to study up on what the rule of law is.

The President speaking, etc., are due process problems, but the rule of law means the law is above all, regardless of rank, office or position.

Robert Shotzberger said...

Lex Rex

Armigerous said...

"The King is not subject to men,but to God and the law"

~Sir Edward Coke~

VeracityID said...

The crowd is using short hand for arrest and prosecute her. Because in the crowd's (and many independent legal observers' view) prosecution is justified. Lock her up is just shorthand for demanding that the rule of law be upheld even for the rich and powerful.

Fûz said...

"[T]he rule of law is imperiled by punishing people who are not guilty; the rule of law is violated when the prosecutor-in-chief (also known as the president) pronounces a person guilty by name when the facts utterly fail to support"

The rule of law is equally imperiled when the president pronounces a person not guilty, or pressures a proseeutor to drop the case, when the facts have not even been presented to a court.

Anonymous said...

Trump will be the most scrutinized "dictator" in history. For some reason, the checks and balances in our system are only applied against Republicans. The press has become a shameless tool of the Democrats and their corruption. Trump will be held accountable. I have absolutely no reason to believe that he will be a dictator. I can see a dictator rising as a Democrat but not as a Republican.

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