Elie Honig is a dude, and I don't see any reason to believe he has secret motivations beyond, perhaps, the underlying need that professional commentators have to drive engagement through takes that are, well, not lukewarm. In particular, I don't think the guy who wrote a book trashing Bill Barr for his partisan shenanigans at the Justice Department is a MAGA hack or something.
But does that mean his argument is persuasive? Well, uh, no. For all that one might assume he's going for some kind of exciting take, the whole piece does little to deviate from the broader "Alvin Bragg is being too mean to Trump" genre.[1]
The broader genre is rooted in the idea that because charges are a novel application of the law, they must be somehow unjust or unprincipled, and this piece, like so many others, really fails to explain why this is so. I generally believe it isn't, because:
1. Trump was doing something that is actually obviously illegal -- falsifying business records. This is at least a misdemeanor, and while you can say many things about misdemeanors, they tautologically not legal. And while it's not quite a tautology, I don't think the fact that falsifying business records is surprising. Like, yeah, you shouldn't be doing that and the state has an obvious interest in stopping you from doing that.
2. The business records were falsified as part of an egregiously sleazy and corrupt scheme to aide Donald Trump's 2016 campaign, and one which got a ton of public attention. It's not like Trump is being charged in relation to innocuous behavior here.
3. It looks like the argument that this was done to break other laws is, well, correct and well-founded in the evidence presented.
Has anybody been charged like this before? Probably not, but it could also be that no one has really given a DA before thius cause to charge them like this by engaging in this particular sort of illegal and corrupt conduct. Without some additional argument about how the charges go beyond unusual to being unjust, I really don't see the issue.
[1] There's one piece in there about how long it took the prosecution to specify which NY state election laws Trump might have broken that could have merit, but seems to vitiate Honig's objection to basing felony charges on Trump's intent to violate Federal election law.
But if you aren’t prosecuting someone for immigrating because there isn’t anything illegal about how they immigrated, that’s not a sign of societal disintegration!
Whereas if you aren’t prosecuting someone for shooting protesters they disagree with because there isn’t anything illegal about doing that, you’ve got much bigger problems!
My first reply wasn’t very good so I’m going to take a second bite at the apple because why not.
If you want to separate the above statements into different piles and endorse some and not others, you are participating in the dismantling of rule of law.
I think this is both normatively and descriptively incorrect. I think if you fail to prosecute 1, 4, and/or 6, you are edging towards a precipice that places liberal democracy in danger, and if you fail to prosecute 2 and 4, you really are doing no such thing.[1]
The difference is the qualifier “illegally”. If you gun down a protester because you disagree with their politics, you should be prosecuted. If you can’t be prosecuted for it because doing that isn’t illegal, that is, in fact, a sign that something has gone seriously wrong with your society.
This isn’t true with immigration or grazing on Federal lands.
[1] I’m skipping over 3 because it drags in so many aggravating factors because of the perpetrator’s idiocy, arrogance, and corruption.
Maybe, but I don’t think I’d be alone in thinking (to choose a less charged example) that a prosecutor who didn’t go after someone for grazing cattle on Federal land was skirting the edge of dangerous lawlessness, and I would be unconcerned and unsurprised to hear about someone being pardoned for such activity.
Like I think the malum prohibitum vs malum in se distinction is basically a sensible one and it’s applicable and important here.
7. When someone performs, or facilitates, an abortion illegally, they should be prosecuted…?
Because that’s the actual “defection” in the “iterated game” that is driving Abbot to go after Granza, and this pardon is partly about that
Because I don’t think I should be required to endorse Texas’s tyrannical approach to abortion in order to say that it’s bad for Abbot to endorse the politically motivated murder of left-wing protesters.
There are two related sets of problems. One is the "demographic crisis", and the other is that people are generally dissatisfied (if you ask/poll them) with the number of children they have (or are able to have).
Solving the latter set of problems will likely assist with demographic challenges, but it's not so wild to think that the latter problems are problems independent of demographics.
Another way to put it, in the terms @in-md used, is that immigrants can get married and have kids for us, but they can't really do that for you.
Why should I think that young people aren’t already doing that thing we do to create new people?
On the one hand, there's been a striking decline in birth rates in the US (much like the rest of the developing world).
On the other hand, the vast majority of the drop happened prior to 1975, so the issue is less "young people today" and more "everybody today".
While there are indeed problems there, I'm extremely skeptical of the impulse to project those problems onto a generation of young adults who are doing pretty much what their parents (and grandparents!) did.
Also, divorce rates have been declining for a while now -- people are just less likely to get married in the first place. Not really sure this whole, "Let's make marriage an even more costly commitment!" program is really gonna do a lot to stem that particular tide, either.
One of her few conservative beliefs that she holds deeply is that divorce is bad for kids and will mess them up in some way even if the parents work things out with maximum rationality and calmness.
Relative to having parents who don't feel the need to divorce? Almost certainly.
Relative to having the parents who do feel the need to divorce but don't? The answer is much, much less obvious.
There's a wide range of scenarios encompassed by the latter, and if there's a reliable way for outsiders to determine which side of the "bad for the kids" line a given divorce falls, I have no idea where it might be. This includes hearing, either through the grapevine, or directly, that the reasons for the divorce were relatively mild.
People have all sorts of reasons for being less than transparent about their exes' shortcomings, and many of those are amplified when there are kids in the picture.
Obviously the converse is also true: it almost doesn't need mentioning that some people are happy to exaggerate their exes' flaws, or invent new ones out of whole cloth.
As with many other reactionary impulses, while I acknowledge that it's applicable in some cases, actually applying it to any specific real world divorcing parents involves a degree of knowledge and involvement in other people's relationships that I don't have and don't want.
This isn’t lost on postliberals. Writing on Calendargate in the American Conservative, former Ron DeSantis speechwriter Nate Hochman bemoans the way that so-called conservative brands play into mainstream culture rather than challenging its premises.
It was much easier to define conservatism in a way that could appeal to a broad coalition when you were opposed to communism. They had a couple generations of politics on Easy Mode due to the Cold War.
In particular, when the enemy is an explicitly totalitarian form of progressivism, you get to claim any classically liberal value as something that you're trying to conserve. Stuff that you, as a conservative, might not otherwise like so much (like, say, the endless churn and displacement that capitalism gets you, for better and worse) is vastly better than the alternative you're opposing (it's really hard to find anything nice to say about command economies).
They kept looking for new totalitarian threats once the USSR blew up, and those totalitarian threats kept looking less threatening, less totalitarian, or (usually) both.
This is more a modern media thing than a Conservative thing.
My hot take is that Republicans have outsourced much more of their partisan organization and policy development to media outlets over the past 20 years than Democrats have.
This all happened at a time where the whole media ecosystem was evolving rapidly, in directions that have not overall been beneficial if you want to understand what's actually happening in the world, and where conservative media was really ahead of the curve on some of the most baleful trends, like being captured by audience preferences.
There are downsides to turning a major political party into a content mill.
Like, he's a methodical murder guy who's forced to go on the run and then methodically murder some other guys (mostly themselves more-or-less methodical murder guys), after screwing up one of his methodical murders?
OK sure, but none of the elements really warrant investment.
The only one of these I've seen was The Killer, which is probably my least favorite Fincher movie since Panic Room... which still made it well worth watching. Some good performances, aurally and visually impressive, etc., but ultimately it I had the same problem with it that I have with a lot of noir-influenced thrillers do: I could have cared less about the main character and what happened to him.
For what it's worth, the actual decision from the CO Supreme Court goes into considerable detail (pp. 84-88) on this very point. Their reasoning is that the commitment to "preserve, protect, and defend" meets the plain language meaning of "support", and look to the record around the 14th Amendment's ratification and conclude that the original intent was to include the Presidency.
They even go a little further and argue that the President's oath is specific oath, basically involving more specific type of support than the oath taken by other officers.
Finally, they point out it would be illogical to have Section 3 apply to every office but the most powerful one.
It is a restriction, but it is not infringement, for the following reasons:
1. It's one guy. You can always find another guy, and this does not prevent you from voting from an entire class of guy in a way that prevents you from getting adequate representation. This makes the restriction involved more analogous to the still-standing and widely accepted prohibition of bigamy.
2. It's not discrimination on the basis of a protected class, unlike a prohibition against gay marriage (which was, among other things, discrimination on the basis of sex). It's discrimination on the basis of conduct that the state has an axiomatic interest in suppressing: engaging in insurrection.
3. It's in line with the way we interpret voting rights in all sorts of other contexts. Maybe some environmentalists would like to vote for Greta Thunberg for President, and two of the reasons for her disqualification (national origin and age) are a bit more suspect than engaging in insurrection, but it's still widely accepted as fine.
4. It's a restriction explicitly included in the text of the Constitution, and in line with major concerns that animated both the Founders and the people who enacted the Reconstruction Amendments.
I can definitely think of restrictions on voting that would be infringements, but this isn't one of them.
I still don't like the ruling because I think the low bar it sets for disqualification is an invitation to abuse. But if, say, Trump is convicted on either the federal conspiracy charges, or the Georgia RICO charges, and one or more states keeps him off the ballot for that reason, I think that would be legitimate.
"You can't vote," is so wildly different from, "You can't vote for this one guy in particular because they're disqualified from office," I don't see how they even wind up in the same conversation.
Also, not for nothing, but the GOP's record on this is way worse than the Democrats', it's just that it didn't work because the basis for their attempts at disqualification was a bizarre racist conspiracy theory.
Because it's insane that a dude who has already abused the powers of the Office of the President once in an attempt to hold onto power after losing an election is being given a second bite at that particular apple.
We're now on, like, the ninth line of defense against that kind of thing happening.
That ninth line of defense is not going to work for a lot of reasons, not least because we haven't seriously used in at least a century, but it's the most natural thing in the world that people are trying it.
The fact that senate republicans refused to convict a guy who sent a mob to kill them was an act of high cowardice in service of cementing power they don’t deserve.
Yup. There have been a ton of institutional failures that brought us to this point, and about 80% of them are the fault of Republicans being craven, partisan, or cravenly partisan.
But Republicans wield a lot of power at the state level, and if the Supreme Court lets this ruling stand, they'll immediately start using it to exclude Democrats from ballots, exploiting loopholes, weak points, and lacunae in state election laws that were built without any consideration that they might need to adjudicate whether a candidate is ineligible for office based on Section 3 of the Fourteenth Amendment.
If they rule in favor of Trump, none of that can happen.
This isn't a slippery slope.
It's a cliff, and the Colorado Supreme Court just put one foot over the abyss.
Five years ago, this would be depicted as evil people restricting voters’ rights.
Five years ago, disqualifying a former President from running for President again because he sent a mob to attack Congress while attempting to retain power after losing an election...
...like, I don't think that would have been called an attack on voters' rights. Or dehumanizing voters.
On “Trump Guilty On All Counts”
Trump didn't even have to post bail, and he's been released on his own recognizance ahead of sentencing.
It's not like he's a flight risk. More's the pity.
"
Makes you wonder about her secret motivations.
Elie Honig is a dude, and I don't see any reason to believe he has secret motivations beyond, perhaps, the underlying need that professional commentators have to drive engagement through takes that are, well, not lukewarm. In particular, I don't think the guy who wrote a book trashing Bill Barr for his partisan shenanigans at the Justice Department is a MAGA hack or something.
But does that mean his argument is persuasive? Well, uh, no. For all that one might assume he's going for some kind of exciting take, the whole piece does little to deviate from the broader "Alvin Bragg is being too mean to Trump" genre.[1]
The broader genre is rooted in the idea that because charges are a novel application of the law, they must be somehow unjust or unprincipled, and this piece, like so many others, really fails to explain why this is so. I generally believe it isn't, because:
1. Trump was doing something that is actually obviously illegal -- falsifying business records. This is at least a misdemeanor, and while you can say many things about misdemeanors, they tautologically not legal. And while it's not quite a tautology, I don't think the fact that falsifying business records is surprising. Like, yeah, you shouldn't be doing that and the state has an obvious interest in stopping you from doing that.
2. The business records were falsified as part of an egregiously sleazy and corrupt scheme to aide Donald Trump's 2016 campaign, and one which got a ton of public attention. It's not like Trump is being charged in relation to innocuous behavior here.
3. It looks like the argument that this was done to break other laws is, well, correct and well-founded in the evidence presented.
Has anybody been charged like this before? Probably not, but it could also be that no one has really given a DA before thius cause to charge them like this by engaging in this particular sort of illegal and corrupt conduct. Without some additional argument about how the charges go beyond unusual to being unjust, I really don't see the issue.
[1] There's one piece in there about how long it took the prosecution to specify which NY state election laws Trump might have broken that could have merit, but seems to vitiate Honig's objection to basing felony charges on Trump's intent to violate Federal election law.
On “Daniel Perry Freed”
But if you aren’t prosecuting someone for immigrating because there isn’t anything illegal about how they immigrated, that’s not a sign of societal disintegration!
Whereas if you aren’t prosecuting someone for shooting protesters they disagree with because there isn’t anything illegal about doing that, you’ve got much bigger problems!
"
There were important intervening steps… and more than zero problems with the shooting based on my reading in the linked article and elsewhere
"
My first reply wasn’t very good so I’m going to take a second bite at the apple because why not.
If you want to separate the above statements into different piles and endorse some and not others, you are participating in the dismantling of rule of law.
I think this is both normatively and descriptively incorrect. I think if you fail to prosecute 1, 4, and/or 6, you are edging towards a precipice that places liberal democracy in danger, and if you fail to prosecute 2 and 4, you really are doing no such thing.[1]
The difference is the qualifier “illegally”. If you gun down a protester because you disagree with their politics, you should be prosecuted. If you can’t be prosecuted for it because doing that isn’t illegal, that is, in fact, a sign that something has gone seriously wrong with your society.
This isn’t true with immigration or grazing on Federal lands.
[1] I’m skipping over 3 because it drags in so many aggravating factors because of the perpetrator’s idiocy, arrogance, and corruption.
"
Maybe, but I don’t think I’d be alone in thinking (to choose a less charged example) that a prosecutor who didn’t go after someone for grazing cattle on Federal land was skirting the edge of dangerous lawlessness, and I would be unconcerned and unsurprised to hear about someone being pardoned for such activity.
Like I think the malum prohibitum vs malum in se distinction is basically a sensible one and it’s applicable and important here.
"
7. When someone performs, or facilitates, an abortion illegally, they should be prosecuted…?
Because that’s the actual “defection” in the “iterated game” that is driving Abbot to go after Granza, and this pardon is partly about that
Because I don’t think I should be required to endorse Texas’s tyrannical approach to abortion in order to say that it’s bad for Abbot to endorse the politically motivated murder of left-wing protesters.
On “On Parenting and Divorce”
There are two related sets of problems. One is the "demographic crisis", and the other is that people are generally dissatisfied (if you ask/poll them) with the number of children they have (or are able to have).
Solving the latter set of problems will likely assist with demographic challenges, but it's not so wild to think that the latter problems are problems independent of demographics.
Another way to put it, in the terms @in-md used, is that immigrants can get married and have kids for us, but they can't really do that for you.
"
Why should I think that young people aren’t already doing that thing we do to create new people?
On the one hand, there's been a striking decline in birth rates in the US (much like the rest of the developing world).
On the other hand, the vast majority of the drop happened prior to 1975, so the issue is less "young people today" and more "everybody today".
While there are indeed problems there, I'm extremely skeptical of the impulse to project those problems onto a generation of young adults who are doing pretty much what their parents (and grandparents!) did.
Also, divorce rates have been declining for a while now -- people are just less likely to get married in the first place. Not really sure this whole, "Let's make marriage an even more costly commitment!" program is really gonna do a lot to stem that particular tide, either.
"
One of her few conservative beliefs that she holds deeply is that divorce is bad for kids and will mess them up in some way even if the parents work things out with maximum rationality and calmness.
Relative to having parents who don't feel the need to divorce? Almost certainly.
Relative to having the parents who do feel the need to divorce but don't? The answer is much, much less obvious.
There's a wide range of scenarios encompassed by the latter, and if there's a reliable way for outsiders to determine which side of the "bad for the kids" line a given divorce falls, I have no idea where it might be. This includes hearing, either through the grapevine, or directly, that the reasons for the divorce were relatively mild.
People have all sorts of reasons for being less than transparent about their exes' shortcomings, and many of those are amplified when there are kids in the picture.
Obviously the converse is also true: it almost doesn't need mentioning that some people are happy to exaggerate their exes' flaws, or invent new ones out of whole cloth.
As with many other reactionary impulses, while I acknowledge that it's applicable in some cases, actually applying it to any specific real world divorcing parents involves a degree of knowledge and involvement in other people's relationships that I don't have and don't want.
On “Open Mic for the week of 1/8/2024”
This isn't even like third quintile weirdness for Reason.
"
Amazing:
This isn’t lost on postliberals. Writing on Calendargate in the American Conservative, former Ron DeSantis speechwriter Nate Hochman bemoans the way that so-called conservative brands play into mainstream culture rather than challenging its premises.
"Fewer swimsuits, more Nazi symbols!"
On “Conservatives Should Know What They’re Conserving”
It was much easier to define conservatism in a way that could appeal to a broad coalition when you were opposed to communism. They had a couple generations of politics on Easy Mode due to the Cold War.
In particular, when the enemy is an explicitly totalitarian form of progressivism, you get to claim any classically liberal value as something that you're trying to conserve. Stuff that you, as a conservative, might not otherwise like so much (like, say, the endless churn and displacement that capitalism gets you, for better and worse) is vastly better than the alternative you're opposing (it's really hard to find anything nice to say about command economies).
They kept looking for new totalitarian threats once the USSR blew up, and those totalitarian threats kept looking less threatening, less totalitarian, or (usually) both.
"
This is more a modern media thing than a Conservative thing.
My hot take is that Republicans have outsourced much more of their partisan organization and policy development to media outlets over the past 20 years than Democrats have.
This all happened at a time where the whole media ecosystem was evolving rapidly, in directions that have not overall been beneficial if you want to understand what's actually happening in the world, and where conservative media was really ahead of the curve on some of the most baleful trends, like being captured by audience preferences.
There are downsides to turning a major political party into a content mill.
On “My Top 25 Films Of 2023: One Critic’s Best Of The Year List”
Like, he's a methodical murder guy who's forced to go on the run and then methodically murder some other guys (mostly themselves more-or-less methodical murder guys), after screwing up one of his methodical murders?
OK sure, but none of the elements really warrant investment.
"
The only one of these I've seen was The Killer, which is probably my least favorite Fincher movie since Panic Room... which still made it well worth watching. Some good performances, aurally and visually impressive, etc., but ultimately it I had the same problem with it that I have with a lot of noir-influenced thrillers do: I could have cared less about the main character and what happened to him.
On “A Deep Dive Into the Trump Ballot Ban”
For what it's worth, the actual decision from the CO Supreme Court goes into considerable detail (pp. 84-88) on this very point. Their reasoning is that the commitment to "preserve, protect, and defend" meets the plain language meaning of "support", and look to the record around the 14th Amendment's ratification and conclude that the original intent was to include the Presidency.
They even go a little further and argue that the President's oath is specific oath, basically involving more specific type of support than the oath taken by other officers.
Finally, they point out it would be illogical to have Section 3 apply to every office but the most powerful one.
"
It is a restriction, but it is not infringement, for the following reasons:
1. It's one guy. You can always find another guy, and this does not prevent you from voting from an entire class of guy in a way that prevents you from getting adequate representation. This makes the restriction involved more analogous to the still-standing and widely accepted prohibition of bigamy.
2. It's not discrimination on the basis of a protected class, unlike a prohibition against gay marriage (which was, among other things, discrimination on the basis of sex). It's discrimination on the basis of conduct that the state has an axiomatic interest in suppressing: engaging in insurrection.
3. It's in line with the way we interpret voting rights in all sorts of other contexts. Maybe some environmentalists would like to vote for Greta Thunberg for President, and two of the reasons for her disqualification (national origin and age) are a bit more suspect than engaging in insurrection, but it's still widely accepted as fine.
4. It's a restriction explicitly included in the text of the Constitution, and in line with major concerns that animated both the Founders and the people who enacted the Reconstruction Amendments.
I can definitely think of restrictions on voting that would be infringements, but this isn't one of them.
I still don't like the ruling because I think the low bar it sets for disqualification is an invitation to abuse. But if, say, Trump is convicted on either the federal conspiracy charges, or the Georgia RICO charges, and one or more states keeps him off the ballot for that reason, I think that would be legitimate.
"
"You can't vote," is so wildly different from, "You can't vote for this one guy in particular because they're disqualified from office," I don't see how they even wind up in the same conversation.
Also, not for nothing, but the GOP's record on this is way worse than the Democrats', it's just that it didn't work because the basis for their attempts at disqualification was a bizarre racist conspiracy theory.
"
Because it's insane that a dude who has already abused the powers of the Office of the President once in an attempt to hold onto power after losing an election is being given a second bite at that particular apple.
We're now on, like, the ninth line of defense against that kind of thing happening.
That ninth line of defense is not going to work for a lot of reasons, not least because we haven't seriously used in at least a century, but it's the most natural thing in the world that people are trying it.
"
The fact that senate republicans refused to convict a guy who sent a mob to kill them was an act of high cowardice in service of cementing power they don’t deserve.
Yup. There have been a ton of institutional failures that brought us to this point, and about 80% of them are the fault of Republicans being craven, partisan, or cravenly partisan.
But Republicans wield a lot of power at the state level, and if the Supreme Court lets this ruling stand, they'll immediately start using it to exclude Democrats from ballots, exploiting loopholes, weak points, and lacunae in state election laws that were built without any consideration that they might need to adjudicate whether a candidate is ineligible for office based on Section 3 of the Fourteenth Amendment.
If they rule in favor of Trump, none of that can happen.
This isn't a slippery slope.
It's a cliff, and the Colorado Supreme Court just put one foot over the abyss.
"
Five years ago, this would be depicted as evil people restricting voters’ rights.
Five years ago, disqualifying a former President from running for President again because he sent a mob to attack Congress while attempting to retain power after losing an election...
...like, I don't think that would have been called an attack on voters' rights. Or dehumanizing voters.
How do you even get from here to there.
On “Colorado Supreme Court Disqualifies Trump From 2024 Primary Ballot”
I think criminal conviction is the right standard and have said as much elsewhere.
"
Huh?
"
Yup. I think there are conditions under which barring a candidate (including Trump) from running because of Section 3 would be totally fine.
I just think state courts deciding on their own without a criminal conviction to base their ruling on is really not it.
*Comment archive for non-registered commenters assembled by email address as provided.