Recent Academic Writing on the End of the Rule of Law

 

 

[T]here are numerous other methods that Trump will likely deploy on day one of his new administration to immunize himself and punish those who attempt to hold him accountable. The two most important of these would be to appoint an attorney general who could be counted on to fire Special Counsel Jack Smith in an attempt to end the federal prosecutions. Without a special counsel protecting the criminal trials, Trump could then demand that the attorney general withdraw the federal government from the D.C. and the Florida indictments. Second, Trump may attempt to pardon himself for any federal crimes or commute any sentences he has received up to that point. Although it seems likely that both of these acts would constitute criminal obstruction of justice by the President, the Trump v. United States ruling could give Trump cover to do just that; according to the majority opinion, appointing and removing Justice Department officials is among his core constitutional powers to which absolute immunity attaches, and the same would be said for any exercise of the pardon power, given that it is an enumerated power under Article II.

It is not overly dramatic to say that should these events occur, it would signal the end of the rule of law with respect to the presidency . . . .

 

Claire Finkelstein & Richard Painter, When an Indicted Candidate wins the Presidency: What Happens to the Trials if Donald Trump Wins the Election?, S. Cal. L. Rev. Postscript 1, 4 (Oct. 2024), <https://tinyurl.com/yc49yy7x>.

Trump never had a chance to remove Special Counsel Jack Smith. Smith resigned days before Trump will take office. And before he left, Smith actively closed down the D.C. and Florida federal prosecutions. (Albeit, zombie-like, the Florida prosecution continues—against the non-Trump defendants.) If these things were wrongful for Trump to do, was it not also wrongful for Smith to do? And if so, do Finkelstein and Painter think Smith should be impeached for wrongdoing in office amounting to high crimes and misdemeanors? Or should Smith be indicted for criminal obstruction of justice? See, e.g., Claire O. Finkelstein & Richard W. Painter, “You’re Fired”: Criminal Use of Presidential Removal Power, 25 N.Y.U. J. Legis. & Pub. Pol’y 307 (2023), <https://scholarship.law.upenn.edu/faculty_articles/242/>.

One wonders.

Do these two legal academics believe that the rule of law in the United States is now at an “end … with respect to the presidency”?

One really wonders.

 

Seth Barrett Tillman, ‘Recent Academic Writing on the End of the Rule of Law,’ New Reform Club (Jan. 15, 2025, 4:43 AM), <https://reformclub.blogspot.com/2025/01/recent-academic-writing-on-end-of-rule.html>;

A Short Note on John Merryman

 

 

An academic of note recently wrote on a listserv that John Merryman was a “terrorist”.

 

I wrote back as follows:

 

Dear Professor ABC,

[I]n 1861, no one knew where the battlefields would be. I did not write that Maryland was a battlefield, but that some of the state political authorities were seeking to avoid their state “being” a site of [future] battlefields. Many border states had citizens and politicians who wanted to do just that. It was quite rational to do so. Wanting to avoid such an outcome, that is, one’s state being a site of conflict, hardly is on-point with a criminal intent or terrorism.

You are constantly ratcheting up what counts as terrorism and what we know about John Merryman. Do you really believe that Merryman was “attempting to raise troops to fight the US” or even “attempting to raise [any] troops”? If you don’t believe that, why say it? Was the destruction of the bridge to inspire terror and fear amongst civilians? Or just to stop Union troops movements in Maryland? If the latter, that might be a crime, it might be a war crime, it might be treason, but terrorism? Really? I think terrorism is a term better reserved for Quantrill and his raiders, and those like them. Forrest may have been a terrorist, but he is probably better characterized as a war criminal for Fort Pillow. [Your] using the language of “terrorism” for Merryman drains “terrorism” of meaning. As I said, do White or McGinty [who are John Merryman’s recent biographers] use such language?

What we know about Merryman is quite ambiguous. See, e.g., ‘Merryman, John, of Hayfields,’ in 1 The Biographical Cyclopedia of Representative Men of Maryland and District of Columbia 312–313 (Baltimore, National Biographical Publishing Company 1879), <https://tinyurl.com/mtf43mbk> (explaining that shortly before Merryman’s seizure by the U.S. Army, Merryman “was introduced to [U.S.] Major Belger, and offered to render him or the [Union] troops any service required; and if necessary would slaughter his [Merryman’s] cattle to supply the[] [Union troops] with food.”). Do I know if what is reported here is true? No. I don’t. I do know that the [contemporaneous historical] record, as were the times, was quite messy, and although there were some figures who were singularly pure and others singularly evil, many were quite in-between. Merryman was one such figure. If burning a single privately owned bridge is terrorism, then Sherman and all his troops were pirates, along with virtually every other soldier on both sides. Who believes that?

Seth

Seth Barrett Tillman, ‘A Short Note on John Merryman,’ New Reform Club (Jan. 12, 2025, 10:49 AM), <https://reformclub.blogspot.com/2025/01/a-short-note-on-john-merryman.html>; 

CALIFORNIA: POLITICAL ACCOUNTABILITY

 

LA’s city council has 15 members. 14 of the 15 are Democrats. Apparently, the 15th is an independent.

<https://x.com/SethBTillman/status/1878284785715470787>; 

Seth Barrett Tillman, ‘California: Political Accountability,’ New Reform Club (Jan. 12, 2025, 6:26 AM), <https://reformclub.blogspot.com/2025/01/california-political-accountability.html>;