First, forgive the flight of fancy in the title. As you probably reckoned, this week’s topic was a moving target. But before we dive into that, a couple of words about the latest in our world. The murder of Aleksei Navalny, though predictable, came nonetheless as a terrible shock to all of us who believe there should be a free Russia. We’re having Natan Sharansky on this week to talk about Russia, Putin, and the power of dissidence. Sadly, that’s not all from that neck of the woods.
February 24 marks the second anniversary of Russia’s attack on Ukraine. (We’ll have a special podcast with our friend Yaroslav Trofimov about his important new book, Our Enemies Will Vanish, to commemorate the date.) The Ukrainians have shown remarkable courage and resilience. Unfortunately, we can’t say the same for the US Congress, which has tied itself in knots over the question of providing critical arms to the Ukrainian military. My favorite argument against? That this is another “endless war” the US must avoid. I’d like to walk up to the… person… making that claim and ask him exactly how this war is ours? Ukraine is fighting our enemy. Ukrainians are dying. We are spending what amounts to chump change in our defense budget to try to defeat one of our most dangerous enemies. And yet there are members of congress who find that… exhausting.
But enough about the failings of Congress. Let’s talk about the failings of our other leaders. Needless to say, we rallied one of our favorite lawyers, National Review’s Andy McCarthy, to ‘splain it all.
The week started with a mondo Senate blowout over a long negotiated Republican border provision in a proposed supplemental for Ukraine, Israel, and Taiwan. That went off the rails so badly, the Republican leader didn’t vote for it. But while your faithful podcasters were getting their heads around the border legislation (Marc against, Dany more for), the special counsel named to investigate President Biden’s retention of classified documents released his report. And pow, boom, splat. There went the border, and possibly the 2024 election.
We had questions. Why did special counsel Robert Hur lay out the President’s sad mental state? Why did the White House roll out the President only to underscore his sad mental state? (President Sisi does not live in Mexico, sigh.) Why is it enough to be doddering not to be prosecuted? And so much more.
But we also had the Supreme Court hearing the Colorado case trying to bar Trump from the 2024 ballot under the 14th amendment. The justices all seemed doubtful, because, let’s face it, it’s a shady argument. (That’s not the legal term, but it might as well be.) Check out the highlights or the full pod to see why. And some of the more troubling implications of the Court’s deliberations…
What will the next week hold? Will Biden tell us who runs Mexico? What will the Supreme Court decide about Trump and presidential immunity? (BTW, our colleague Jack Goldsmith had a splendid article on that this week.) Does Russia have nuclear weapons in space? Will Congress let the government shut down? Will the UN finally just come out and admit it hates all Jews? Your guess is as good as ours.
HIGHLIGHTS
Who is to blame, Hur? Garland?
AM: The regulation says that the special counsel is supposed to provide the attorney general with a confidential report and then it's up to the attorney general to decide how much of the report gets publicized and whether anything gets redacted. So to the extent people are upset about the way that Hur articulated what he articulated in the report, their problem isn't with Hur. Their problem is with Garland, who is the one who published the report with no redactions.
Biden vs. his own Justice Department?
AM: Why do we have Hur? Why is there a special counsel here? There's a special counsel because Garland played politics with the appointment of a special counsel for Trump. If you remember at the time that this all happened, the big issue was the Mar-a-Lago documents case in connection with Trump. And then mind you, the Biden Justice Department had been investigating Trump for almost two years on January 6th and on the documents, and that's because there's no conflict of interest between Trump and the Biden Justice Department. The conflict is between Biden and the Biden Justice Department. Like if the Biden Justice Department has to investigate Hunter or investigate the president, there's no conflict with investigating Trump. So there was no reason to have a special counsel. But what Garland and I suspect the president did was they put their little heads together when Trump said that he was announcing early that he was going to run for president.
And they said, what we'll do is we'll appoint a special counsel and then we'll tell everyone that the Biden Justice Department and President Biden have nothing whatsoever to do with whether Trump gets charged or not. We've put this in the hands of a totally independent actor who doesn't have an ax to grind and is totally separate from us, even though he exercises the President's power and even though he answers to Garland.
Meanwhile, Trump’s classified document case is going nowhere?
AM: I think if Biden wanted to both push back on this idea that he's out to lunch and do something that was fair and would hold him in good political stead and would actually be a smart thing to do, if you want to get the Mar-a-Lago case to trial, what he would do is pardon Trump on the classified information counts and sweat it down to just an obstruction case. The reason the classified information case can't get to trial, and I've been in a couple of these litigations, even if you're putting the pedal to the metal and trying to get a classified documents case to trial, everything is controlled by the Classified Information Procedures Act, which requires you to litigate all admissibility questions regarding classified information prior to trial and also provide for pretrial appeals.
In fact, it actually even applies provides for appeals during the trial. It's one of the craziest statutes because it's the only one I know of in the law where the Attorney General can overrule a court, where if a court decides this piece of classified information must be produced to the defense by the government because it's relevant, the attorney general can veto what the court says, but then the court can dismiss counts. So the court is like court's in charge of the litigation, attorney general's in charge of the national security information. So those cases take a long time to get to trial because even if the government says "We can get a very finite set of what we think is relevant," they don't get to decide what's relevant. Once it's a case the defense gets to play too. And they come in and say, Trump guys are doing this, just like every set of defense lawyers in these cases do.
They've come in and say, "Oh, we need this raft of other classified documents because how else could the jury understand the documents that the government is trying to put in unless we have this context of these other docs." So it metastasizes and it gets to be very difficult to kind of rein in what's relevant to the case and have the judge make all the rulings prior to the trial about what can come in. And you can make that all disappear overnight if you just got rid of these 32 counts and went to trial on the obstruction counts, which there's eight obstruction counts.
But what’s the key difference between Trump and Biden and the classified documents?
AM: Their rationale for charging Trump and not charging Biden is that Biden cooperated, whereas Trump obstructed. And the thing is, in this country, we don't give awards to people for cooperating because that's what they're supposed to do. We indict people who don't cooperate. So if I commit a murder and I'm reasonably cooperative with the police, they don't say to me, "You know, you've been very cooperative. Let's forget that little murder thing." They don't do... What they do is cooperation becomes a sentencing issue, but you still get charged with the things that the investigators were investigating at the time that you were cooperative. So it doesn't make sense to charge Trump with 32 felony counts of the Espionage Act because he obstructed and then not charge Biden with however many counts of the Espionage Act because he was cooperative. What you do is either charge both of them with the classified documents and charge Trump with obstruction or charge neither of them with the classified documents and charge Trump with the obstruction. But you don't not charge the guy because he was cooperative with the police or the investigators.
Should Hur not have included this in his report?
AM: My sense reading the report, Dany, is that he's trying to be painstakingly clear by quoting him when the worst stuff in the report reads to me like it's either coming off a tape recording or a transcript because he wanted to be faithfully close to whatever it was that Biden said in answer to these questions.
And the other point I'd make about that is, as I said before, it was up to the Attorney general what to release here. Garland read the same report we did. If Garland had problems with the way that Hur had articulated this, he could easily have said, as I would've said, if I was his supervisor and I was worried about it, I'd say, "Let me see the tapes. Let me see the recordings. Let me review them before I decide what goes out." So I don't think it's Hur's problem. The Democrats have their own problem because they made this bed with a guy they... I mean we've all seen the last three years they knew this guy was faltering and now they're upset. It seems to me because this is like a king truly has no clothes moment, but that's not Hur's fault.
Hur is saying that this is the argument his lawyers would have made to the jury, about Biden’s competency, right?
AM: When you have a case that has a legal problem, you never get to how is the jury going to be affected by it because there's not enough evidence to bring the charge in the first place, right? If you're talking about the jury, that's already bad for the defendant. But the other thing is the analysis doesn't make any sense in terms of his guilt or lack of guilt as to the charges. The issue of his current mental state is relevant to whether he's fit to stand trial, which is a big issue and you might end up in a big litigation here.
But in terms of his guilt or lack of guilt with respect to the particular acts that violate the espionage Act, what's relevant is his state of mind at the time he committed the acts, not his state of mind now. So to the extent that Hur gave him a pass, because currently he's like non compos mentis or something close to it, and therefore they worried how that would affect the jury, you can do it that way. You can say, "This is my reason," but it's not a reason that makes sense in terms of the criminal acts we're talking about.
Explain the 25th Amendment charges against Trump?
AM: The 25th Amendment is a political process. It's a political calculation that's got to be made by the vice president and at least half the cabinet in order to invoke it. The way the amendment is written, a president who is determined to retain power is going to be able to retain power in the end because the 25th Amendment, and my recollection is it was ratified after the Kennedy assassination, and what they were thinking about was the possibility that had Kennedy lived, he would've been brain-dead, but had he continued to survive in a vegetative state after the shooting, what would've happened?
And the other precedent I think that they had in mind was the Woodrow Wilson precedent. So you're dealing with a situation, the only way it ever seems like an automatic to me is when you're dealing with a president who truly cannot function. Biden can function, he just can't function well enough to be president.
And what about the 14th?
AM: Too often we look at what the partisan affiliation of the judges is, and that's a pretty good barometer for how they're going to come out on a lot of these politically freighted cases. And I think sometimes ideology is more important than partisanship. We kind of conflate them most of the time because the parties line up that way more or less. But in this instance, those three progressive judges are Democrats and they vote with the Democrats most of the time when it's an issue that's important to Democrats. But they're also ideological progressives. And the reason I think this is important is if you went in there as Colorado or to argue Colorado's position, you're dealing with six conservative justices, more or less, who line up pretty much as textualists and originalists, right?
So the problem they have is the text of the amendment does not support what Colorado wants to do. For example, the text says you can't be president. What Colorado is saying is you can't run for president. So on the one hand, they're invoking the 14th Amendment in order to do what they want to do, which is keep Trump off the ballot, but they're also expanding the meaning of the 14th Amendment beyond what it actually says. That would be an argument that wouldn't be and wasn't attractive to Textualist judges. Then the other problem they have with the conservatives is history, right? Justice Thomas is pressing them on "You know, there were a lot of confederates around after the Civil War. How come this didn't come up more often? Why don't you have a million examples of states that kept people out of federal offices?" And they can't come up with them.
What’s the liberal side of the court’s perspective?
AM: So with the conservatives, the most important thing is always going to be original, meaning history and text, and it's all uphill for them. But then when you look at the three progressives, yes, they're Democrats and it's Democrats in Colorado who are trying to knock Trump off the ballot. And for the most part it's Democrats across the country who are running the gambit to try to keep them off the ballot. But the thing is these are progressives, and if you look at the history of the United States, the history of the progressive project in the United States in terms of governance, the most important foundation of the progressive project in the United States is the 14th Amendment.
As Chief Justice Roberts said during the argument, you have an amendment in the entirety of the 14th Amendment, not just section three, the point of which was to claw power away from the states and vest it in the federal government, and it restricts the states in various ways and yet hear what Colorado is asking the court to do is a kind of a hyper federalist thing to basically say a single state can decide who can run for a federal office the most important federal office.
So I would think that in almost every case, I'm sure, for example, if you looked at Justice Kagan's career or Justice Sotomayor, we haven't seen that much from Justice Jackson, but I bet you every 14th Amendment case that they've had, they've been trying to expand the power of the federal government. And here they were asked to do the opposite, which is why I think it turned out to be uphill on both sides.
How will SCOTUS view these constitutional cases?
AM: I think it'll be nine-nothing. It'll be very one sided one way or the other on the consensus proposition that the states don't have this authority, but they're not going to say that with respect to the federal government. So here's the problem.
As the Supreme Court, if you don't straighten out what does insurrection mean and what do you have to do to commit insurrection, what's going to happen is if Trump wins the election, Democrats in Congress at the next January 6th at the next joint session of Congress where they have to ratify the result of the election, Democrats in Congress will invoke section three of the 14th Amendment to object to Trump taking office. And we'll have this whole to do all over again. So what I'm worried about is Roberts, and I think a lot of the court very much wants to speak with one voice here and be as close to nine, nothing as they can be. And the consensus here is going to be the States can't do this, but that doesn't solve the problem because if there's still doubt as to whether Trump actually did what's legally necessary to commit insurrection, even though he's never been charged with it, then this is going to come around again if he wins the election and you have the next joint session of Congress to ratify the electoral votes.
And finally, the border.
AM: Well, I think the border does have to be dealt with, and legislatively there is a lot that can be done to fix it, but just because it's legislation doesn't mean it's good legislation. And here what I think they were doing was everything that's good in the bill is something that Biden can do already on the basis of the law. And he keeps saying that he can't fix this, that he needs an act of congress. There's a provision in the immigration law, Section 1182, whenever the president finds that the entry of any aliens or any class of aliens into the United States would be detrimental to the interest of the United States, he may by proclamation and for such period of time as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants. He can close the border Now, and the Supreme Court looked at this two years ago, or it was during the Trump years, so I guess it's probably three, four years ago.
But the Supreme Court says Section 1182, basically 1182 F oozes authority for the president under it. There's no doubt in their mind, for example, that the president could set up a blockade to prevent aliens from coming into the country and could just seal off the border. The President has that authority. So to my mind, if you're going to improve things here, don't tell me that in order to get Biden to close the border, I have to buy on to a lot of really bad stuff. And the worst things in this bill are that right now under federal law, the law is that illegal alien who enters the United States shall be detained until the end of the person's conclusion proceedings, the removal proceedings. What this bill did was change that presumption in the law and basically codify releasing people into the United States.
They're supposed to be detained until the end of their hearings. If that's the law and the president has the authority to close the border, then why not close the border at zero or close the border and only let in as many as we have detention space for? Because this algorithm where they say whether it's triggered at 4,000 or 5,000 or 8,500, there's all different iterations of it, but the presumption of all of it is that the border can be closed. This whole thing that they've been telling us for three years, that if a person sticks a toe on American soil, he has all kinds of procedural rights and we have to have him in because he's allowed to challenge whether we can kick him. All of a sudden they decided, "Well, it turns out there's a magic number, and if you hit that, we can close the border and we don't have to let anyone in." Well, if that's the case and our law says that it should be zero, then why not close it now until we can get the backlog dealt with.
Read the full transcript here.
SHOWNOTES
On Hur Report, Democrats Shoot at the Wrong Target (National Review, February 9 2024)
Read the special counsel’s report on Biden’s handling of classified documents (NPR, 8 February 2024)
Forget about a second term. Is Biden fit to be president right now? (Washington Post, February 9 2024)
The Senate Border Deal Should Be Rejected on the Merits (National Review, February 5 2024)
What the border bill would and wouldn’t do (CNN, 6 February 2024)
Why Republicans are right to oppose the bipartisan border deal (Washington Post, 7 February 2024)
GOP senators defy Trump by advancing foreign aid bill (Politico, February 11 2024)
Tracking Section 3 Trump Disqualification Challenges (Lawfare, Updated February 2024)
Supreme Court justices appear skeptical of effort to remove Trump from a state ballot (NPR, 8 February 2024)