Category: American history

An unseemly rhyme

On the left, a color photograph of a woman in a blue baseball cap with long wavy hair, wearing a tight-fitting white jersey and drawstring gray cargo pants, in front of a cell inside of which can be seen prisoners standing and sitting on bunks. On the right, a black-and-white photograph of concentration camp survivors, sitting and lying in bunks inside a barracks at Buchenwald.

My mind has rebelled against the cascade of bad things the Trump regime has done lately by insisting that I pay attention for a little while to just one of them.

The week before last, the United States effected the spectacular rendition, fascist in manner and deed, of several hundred Venezuelan refugees to a forced-labor prison in El Salvador. U.S. immigration officials began laying the groundwork for the rendition well before Trump came to power for the second time.

As early as June 2024, American immigration officials began detaining Venezuelan refugees for their tattoos—a form of personal expression that, ironically, has been bound up with American national identity since the early republic, when sailors marked their bodies permanently as American in an effort to keep from being impressed into the British navy, which, long after America’s independence, was slow to distinguish American citizens from British subjects (see Nathan Perl-Rosenthal, Citizen Sailors: Becoming American in the Age of Revolution).

In June 2024, for example, an aspiring Venezuelan streetwear entrepreneur named Frizgeralth de Jesús Cornejo Pulgar, who had been targeted by paramilitary groups associated with Venezuela’s Maduro regime, met U.S. border patrol agents for an asylum interview that he had requested through the agency’s official app and was detained by them because of his tattoos. Not even a declaration from his tattoo artist, confirming that the designs were innocuous, could get him released. In November, Daniel Alberto Lozano Camargo, a Venezuelan asylum seeker working at a carwash in Houston, was detained because of his tattoos, which included the names of his father, his niece, and his partner’s daughter. In December, Jerce Reyes Barrios, a professional soccer player who had been arrested and tortured by the Maduro regime in Venezuela after taking part in peaceful political demonstrations, also made an appointment through U.S. immigration’s official app to apply for asylum, only for U.S. officials to argue that his tattoos—a soccer ball and a rosary—marked him as a member of the Venezuelan gang Tren de Aragua. He, too, was detained.

E.M., a young Venezuelan food vendor and delivery person who has so far only been identified in the press by his initials, fled to Colombia with his girlfriend in 2021, after paramilitaries in Venezuela targeted the two of them for their political activity. In 2023, E.M. and his girlfriend applied from Colombia for asylum in the United States. U.S. immigration agents in that country asked E.M. about his tattoos but, seemingly unconcerned, granted the couple official refugee status in late 2024. When the couple arrived in Houston on 8 January 2025, however, immigration officials designated E.M. a member of the same gang, also on the basis of his tattoos—a crown, a soccer ball, and a palm tree. He, too, was detained. All of these refugees denied gang affiliation, as did their families; none had criminal records.

The day of his inauguration, Trump issued an executive order declaring Tren de Aragua to be a terrorist organization. It seems likely to me, given the timing of the early detentions and of Trump’s first-day proclamation, that a plan was in place, and that officials inside Immigration and Customs Enforcement had been cooperating with it quietly even before Trump took office. After the inauguration, the collection of refugees accelerated. A Venezuelan barber named Franco José Caraballo Tiapa was detained because of his tattoos on 3 February 2025. When Frengel Reyes Mota, a house painter who fled Venezuela in 2023, checked in with U.S. immigration officials on 4 February 2025, he, too, was detained as a suspected gang member, even though he has no tattoos at all, as well as no criminal record, and even though, in the documents filed against him, “the government . . . uses someone else’s last name in several parts . . . , identifies him with female pronouns, and uses two different unique identification numbers that immigration authorities use to keep track of individuals.” A Venezuelan named Neri Alvarado Borges was also detained in early February; one of his tattoos was an autism awareness ribbon with his brother’s name. On February 8, an aspiring musician named Arturo Suárez Trejo was arrested by immigration officials at his home in Raleigh, North Carolina; his tattoos include a hummingbird, which his wife says symbolizes “harmony and good energy,” and a palm tree, a reference to a Venezuelan expression about God’s greatness that his mother likes to quote. The tattoos that got Andry Hernandez, a gay makeup artist, detained “are flowers and are dedicated to his parents,” one of his lawyers has told NBC News; Hernandez, too, was detained when he showed up for his appointment to request asylum.

In early March, these detained Venezuelan asylum seekers and others were moved to South Texas or Louisiana from detention centers elsewhere, vanishing from courtrooms around the country where their cases were still being heard. The government seems to have made tracking the location of the detained refugees difficult even for their lawyers, but Josh Kovensky, reporting for Talking Points Memo, has uncovered records of detainees being moved on March 5, between March 7 and March 9, and on either March 10 or 11.

On the night of Friday, March 14, the detainees were “told they would be deported the next day to an unknown destination,” and lawyers for the American Civil Liberties Union and Democracy Forward, representing five of these detainees, somehow “caught wind of these movements,” according to a narrative of the facts compiled by Judge James E. Boasberg. In the early hours of Saturday, March 15, the lawyers filed for a temporary restraining order, asking Boasberg’s court to prevent the U.S. government from sending the detainees out of the country before their cases could be heard. The lawyers suspected—correctly, it turns out—that the Trump regime was planning to deport the Venezuelans under the Alien Enemies Act of 1798, the only law to survive from the repressive Alien and Sedition Acts that schoolchildren are taught to deplore, a law that hadn’t been used in seventy-five years. Immigration officials were boarding detainees onto airplanes as early as 7am that Saturday morning. At 9:40am, Judge Boasberg gave a verbal order forbidding the government to send the five plaintiffs named in the case out of the United States. Immigration officials delayed the deportation of those five, but continued to deport the other Venezuelans in custody. At 4pm, the Trump regime revealed that Trump had indeed signed a proclamation targeting Tren de Aragua under the Alien Enemies Act, and at 5pm, Boasberg began hearing the civil rights lawyers’ request for a restraining order. The Trump regime’s representatives in court repeatedly refused to answer when Boasberg asked if detainees were at that very moment being deported, but in fact, the first plane left Harlingen, Texas, at 5:26pm. At 6:47pm, Boasberg enjoined the government from removing from the country anyone detained under the Alien Enemies Act—not just the five named in the lawsuit—and told the government that “any plane containing [members of the class] that is going to take off or is in the air needs to be returned to the United States. . . . This is something that you need to make sure is complied with immediately.” When he spoke those words, two planes were still in the air, and a third had yet to depart Texas. Boasberg’s order was entered into the court’s docket at 7:26pm Saturday evening.

The order was not complied with. The first of the U.S. government’s three planes landed in El Salvador at 12:10am Sunday morning—hours after both the oral and the written versions of Boasberg’s order. Boasberg wrote that “the most reasonable inference is that [the Government] hustled people onto those planes in the hopes of evading an injunction or perhaps preventing them from requesting the habeas hearing to which the Government now acknowledges they are entitled.” He was being almost polite. The Trump regime’s defiance of his court’s authority was flagrant.

The government’s planes landed at a “mega-prison” in El Salvador called the Centro de Confinamiento del Terrorismo (CECOT). Soon after they arrived, the president of that country, Nayib Bukele, who has ruled as a dictator since 2022, tweeted, “Oopsie… Too late,” a message that U.S. Secretary of State Marco Rubio retweeted. El Salvador, an authoritarian country, currently has “the highest incarceration rate in the world.” Its vice president has told the New York Times, “To these people who say democracy is being dismantled, my answer is yes—we are not dismantling it, we are eliminating it, we are replacing it with something new.” Bukele himself has boasted, “Let all the ‘human rights’ NGOs know that we are going to wipe out these damned murderers and their collaborators, we will put them in prison, and they will never get out. We don’t care about your pathetic reports, your paid journalists, your puppet politicians, or your famous ‘international community,’ which has never cared about our people.” The human rights NGOs that Bukele scorns have concluded that “torture has become a state policy” in El Salvador, and report that in its prisons, dead bodies have been left in cells until they stink, hungry prisoners have been made to lick food off the floor, and overcrowded cells are sometimes flooded and then an electric current passed through the water. Incarceration at CECOT, which is a forced-labor camp, seems to be permanent. “The Salvadoran government has described people held in CECOT as ‘terrorists,’ ” the director of the Americas division of Human Rights Watch notes, “and has said that they ‘will never leave.’ Human Rights Watch is not aware of any detainees who have been released from that prison.”

That the United States government had anything to do with Bukele’s regime at all is in itself a five-alarm fire. And sending refugees to a country with a human rights record like El Salvador’s is not only morally reprehensible—it is against U.S. law. As Boasberg notes in his decision, the Foreign Affairs Reform and Restructuring Act stipulates that the United States may not “expel . . . any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture.”

What brought the evil done by the Trump regime home to me, though, is the account that Philip Holsinger, a photographer for Time magazine, gave of the refugees’ arrival at CECOT:

The intake began with slaps. One young man sobbed when a guard pushed him to the floor. He said, “I’m not a gang member. I’m gay. I’m a barber.” I believed him. But maybe it’s only because he didn’t look like what I had expected—he wasn’t a tattooed monster.

On Bluesky, I saw speculation that this gay barber was Andry Hernandez, but there’s no way of knowing for sure. Hernandez is a makeup artist, and the two barbers among the deportees that I’m aware of seem to be straight. It hardly matters. The anguish of the prisoner, whoever he is, rings clear as a bell. And Holsinger’s photographs fill out the picture alarmingly. After arriving in the intake yard, in the middle of the night, the prisoners, shackled at their wrists and ankles, were slapped, kicked, and shoved. As the prisoners’ heads were shaved,

The guy who claimed to be a barber began to whimper, folding his hands in prayer as his hair fell. He was slapped. The man asked for his mother, then buried his face in his chained hands and cried as he was slapped again.

To recapitulate: Two weeks ago, my country, the one I was born in and that I’m a citizen of, sent hundreds of men, many with no criminal record, to a forced-labor camp in a totalitarian country that almost none of these men had probably ever been to. Upon their arrival, they were assaulted, their clothes were confiscated, and their heads were shaved. Those running the camp promise they will never leave. How is this not complicity in sending people to the modern equivalent of Auschwitz? How is this not the moral nightmare that every decent person alive today with any knowledge of history has been dreading his whole life? Whole news cycles of malfeasance by the Trump regime have coursed over us since these men were deported. But Andry Hernandez is still locked in CECOT, where, the Financial Times has written, if it ever reaches full capacity, each prisoner would have “less than half the minimum [space] required under EU law to transport midsized cattle by road.”

As if to prove the Trump regime’s immorality, Kristi Noem, the Secretary of Homeland Security, flew to El Salvador the other day to tour CECOT, and had herself filmed in front of a cell where the bunks are four tiers high. That’s how high the bunks were at Buchenwald, as it happens. To anyone who has ever read books about or watched documentaries about the Holocaust, Noem’s video selfie, which she posted to her Instagram account, makes an unseemly rhyme.

The Ordinary course of law

On 1 July 2024, the Supreme Court awarded former and current Presidents sweeping immunity from criminal prosecution—protecting them from criminal liability for almost any act performed while in office, so long as the act was performed in the President’s capacity as President.

Writing for the majority, Chief Justice John Roberts ruled that a President is absolutely immune from criminal prosecution for any exercise of his “core constitutional powers,” such as issuing pardons, nominating ambassadors, and firing heads of department [Roberts 9], and must be presumed immune from criminal prosecution for any other official act, unless it can be shown that prosecution won’t in any way conflict with the “authority and functions of the Executive Branch” [Roberts 14]. The Roberts court also ruled that a President may not be subjected in court to any examination of his motives [Roberts 18], which implies, according to Roberts, that even in a trial of a President for his unofficial acts, a prosecutor may not introduce any of a President’s official acts as evidence [Roberts 30].

The three liberal justices on the court wrote strong dissents, which so irritated Roberts that, toward the end of his opinion, he accused them of adopting “a tone of chilling doom” and relying on “cherry-picked sources” [Roberts 37–38]. Why so emotional? he seemed to be asking. He himself had raised his eyes toward legal eternity (“we cannot afford to fixate exclusively, or even primarily, on present exigencies,” he wrote [41]), and if he had made the effort of rising to the dispassionate, slightly inhumane plane where eternity may be duly thought through, why couldn’t they? It’s a mistake to pay too much attention to the messy, distracting corporeality of Donald J. Trump, was his implication. Instead of the mere case at hand, focus on its abstract and perpetual ramifications.

There is something to the empyrean angle, of course. Supreme Court decisions often get turned inside-out like gloves by the justices of later generations, so there’s virtue in thinking beyond the case at hand. Speaking just for myself, a part of me is always ready to worry that I’m listening to my heart when I should be listening to my head. So let’s consider; let’s be cool. Is Roberts’s reasoning sound? Has Sotomayor, who wrote the stronger of the two dissents, misread the historical evidence of the intent of the Constitution’s Framers, or failed to take into account the implications of intervening rulings and case law?

One of the things that seems to have most annoyed Roberts is that Sotomayor quoted scripture at him, scripture in this case being The Federalist Papers, the preeminent source, especially among originalists and other legal conservatives, for documenting the Framers’ own rationale for the Constitution. Sotomayor noted that in Federalist No. 69, Alexander Hamilton wrote that Presidents, in addition to being subject to impeachment by the House and conviction by the Senate for “treason, bribery, or other high crimes or misdemeanors,” are “liable to prosecution and punishment in the ordinary course of law” [Sotomayor 6, quoting Federalist 69]. What a lovely phrase that is, by the way: “the ordinary course of law.” There’s another off-handed reference by Hamilton to the President’s vulnerability to plain-old criminal prosecution in Federalist No. 65, where it is again seen as a punishment supplementary to impeachment: “After having been sentenced to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country; he [the President] will still be liable to prosecution and punishment in the ordinary course of law.” And Hamilton refers to the liability yet again in Federalist No. 77, where he suggests that the Constitution makes the Presidency safe “in the republican sense” (i.e., arranges the Presidency so that it will not easily turn into dictatorship) by subjecting Presidents to election every four years, by making them vulnerable to impeachment by Congress, and by keeping them vulnerable to “the forfeiture of life and estate by subsequent prosecution in the common course of law.” Life! In the good old days, take note, a politician as unradical as Hamilton seems to have believed that a President who committed treason might have to pay with his head.

Roberts complains that in the quotes that Sotomayor takes from Hamilton, Hamilton doesn’t specify whether the President could be prosecuted “for his official conduct” as opposed to his private conduct [Roberts 39]. Roberts’s implication is that the verses of scripture aren’t therefore all that pertinent. But as Sotomayor points out, Hamilton doesn’t specify because Hamilton doesn’t seem to have seen the need to make any such distinction. He seems to have believed Presidents were responsible for all their crimes.

As did other Framers of the Constitution. Sotomayor quotes a speech that Charles Pinckney, a delegate to the Constitutional Convention of 1787, gave in the U.S. Senate on 5 March 1800. Pinckney recalled that

No privilege of this kind was intended for your Executive, . . . . The Convention which formed the Constitution well knew that this was an important point, and no subject had been more abused than privilege. They therefore determined to set the example, in merely limiting privilege to what was necessary, and no more. [Records of the Federal Convention of 1787, 3: 385, quoted in abridged form by Sotomayor at 7]

Roberts considers Pinckney’s testimony to be “the principal dissent’s most compelling piece of evidence” [Roberts 39], and he rebuts it in two ways. First, by writing that Pinckney is merely stating an argument that has long since been discredited, namely, “that any immunity not expressly mentioned in the Constitution must not exist” [Roberts 39].

In this sentence of Roberts’s, the word “any” is doing a lot of work. In Nixon v. Fitzgerald, decided in 1982, the Supreme Court did rule that Presidents are immune from civil suits for damages even though no such immunity is spelled out in the Constitution. The 1982 court reasoned that the separation of powers implied by the Constitution was meaningless unless the President’s time and attention were protected from interference; the court judged that having a “vigorous” (Hamilton’s word) executive branch was more important than redressing the injuries that a President’s actions might happen to cause to individual private citizens. So yes, there now exists a Presidential immunity from civil lawsuits, not expressly mentioned in the Constitution. Moreover, courts have long been chary of forcing the executive branch to make public its internal deliberations, even when such disclosures might be of use in a trial, because courts have judged it important for the President to have access to candid advice, which might not be forthcoming if advisers worried that their words could appear as trial exhibits some day.

There is no evidence, however, that the particular immunity at stake here—a Presidential immunity to criminal prosecution—existed before 1 July 2024, certainly not in any explicit form. Perhaps sensing that he hasn’t altogether put paid to Pinckney, Roberts moves on to a second line of attack against Pinckney—a rather strange one. “Pinckney,” Roberts writes, “is not exactly a reliable authority on the separation of powers: He went on to state on the same day that ‘it was wrong to give the nomination of Judges to the President’—an opinion expressly rejected by the Framers” [Roberts 39].

The first thing to say about this attack is that Roberts seems to be engaging in a forensic method no more searching than the one I’m deploying in this blog post—namely, looking up Sotomayor’s footnotes. He doesn’t seem to have at his disposal any historical resources he has discovered for himself. The second thing to say is that even just on the face of it, Roberts’s comment doesn’t seem likely to be true. When I first read it—before I had even read Sotomayor’s dissent, let alone looked up the relevant page in the Records of the Federal Convention of 1787—I scribbled in the margin, “But why would Pinckney’s having an opinion not later considered canonical make him an unreliable reporter of the consensus at the Convention?” And indeed, if you go look at the source that records Pinckney’s comments, you’ll see that in his remarks in the Senate in 1800, Pinckney is clearly distinguishing (a) his longstanding personal opinion that it was wrong to have the President nominate judges, from (b) his recollection that it was the sense of the Convention that the executive branch should not be shielded by any privilege. How could Roberts have looked at the page in question without seeing this? Is he that sloppy a reader? Or that tendentious a one? One begins to suspect he may not be operating on a plane quite as empyrean as he would like his readers to believe.

Furthermore, Hamilton’s and Pinckney’s belief seems to have been widely shared in early America, as Sotomayor documents by quoting a speech that James Iredell, later one of the Supreme Court’s first justices, gave on 28 July 1788, when North Carolina was debating whether to ratify the Constitution: “If he [the President] commits any crime, he is punishable by the laws of his country, and in capital cases may be deprived of his life” [Debates on the Constitution4:109, quoted in abridged form by Sotomayor at 7 n 2]. Life again! One gets the impression that the possibility of hanging the President was rather dear to the hearts of the first generation of Americans.

Even more telling, the same belief is also present in the text of the Constitution itself, Sotomayor argues. The Impeachment Judgment Clause limits Congress’s potential punishment of the President to removal from office and the stripping away of honors and pay, but then adds that “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law”“[U.S. Constitution 1.3.7]. Sotomayor puts the word “nevertheless” in italics, to emphasize that the Framers did not intend for impeachment to preclude or preempt criminal prosecution, and points out that bribery, one of the “high crimes” explicitly named as a matter for impeachment elsewhere in the Constitution, involves a President’s official acts almost by definition. If anything, Sotomayor may be underselling her case here. It’s also hard to imagine how a President could commit treason—the other “high crime” called out by the Constitution for impeachment—without deploying his official powers as President. How could a President commit treason if not by taking advantage of his command of the military, or by mounting the bully pulpit and calling for insurrection or civil war? It’s unimaginable that the Framers of the Constitution would have wanted to immunize from criminal prosecution a traitor who turned the armed forces, or a segment of the public, against the Constitution he had sworn to uphold. Indeed, what else could the Framers have been thinking of when they referenced the potential hanging of Presidents so often and so cherishingly? When the Impeachment Judgment Clause is read in the context of the quotes from Hamilton, Pinckney, and Iredell, all of which follow the same semantic pattern—stating that the Constitution provides for impeachment of the President by Congress, and then clarifying that this punishment is in addition to criminal prosecution in the ordinary course of law—it becomes irrefutable that the Constitution states that Presidents are notimmune from criminal prosecution. A Presidential immunity from criminal prosecution is literally, explicitly unconstitutional.

Roberts makes the same retort to the Constitution that he makes to Hamilton, namely, that the Impeachment Judgment Clause “does not indicate whether a former President may, consistent with the separation of powers, be prosecuted for his official conduct in particular” [Roberts 38]. This is weak, since Roberts doesn’t provide any evidence that Hamilton, or any other Framer, thought any such distinction should or could be made. But I’m not an originalist, nor, for that matter, is Roberts, though most of his conservative allies on the Supreme Court are. Let’s go ahead and admit that a criminal immunity for the President’s official acts is being established by decision in Trump v. United States—is being made up. Or, to speak more politely, is being inferred. And let’s take a look at this new construction.

Once you admit it’s new—once you strip away the gilding of historical inevitability and admit that the Roberts majority is working a change in America’s political economy—the change becomes easier to see. Sotomayor for her part insists on the novelty of the Roberts majority’s creation. “Every sitting President has so far believed himself under the threat of criminal liability,” she writes; the threat “has been shaping Presidential decision-making since the earliest days of the Republic” [Sotomayor 17]. If Ford hadn’t pardoned Nixon, she writes, Nixon would likely have been found guilty of deploying the FBI to obstruct justice in the Watergate case—an official act and therefore immune, under the new Roberts dispensation. Indeed, Ford’s pardon of Nixon was only meaningful because Nixon was understood to be liable to criminal prosecution [Sotomayor 9]. Reagan was investigated for the Iran/Contra program because if he had been found to have been aware of and to have directed it, he would have been prosecuted for it even though that illegal operation, too, would as of this week be considered an immune exercise of the President’s official powers [Sotomayor 10].

Sotomayor is biting about the clumsiness of the new construction. In the case before the court, she points out, Trump isn’t charged with any crime that involves what Roberts labels a “core” power of the Presidency, so there was no need, juridically speaking, for Roberts to isolate the President’s “core” powers and bestow on them absolute immunity [Sotomayor 23]. Moreover, since Roberts is willing to include in his “core” exemption any discussion between the President and the Department of Justice, the boundaries around the created category are so extensive as to be almost indistinguishable from the official acts to which Roberts claims to be granting only presumptive immunity [Sotomayor 24]. That presumptive immunity, by the way, Sotomayor considers to be a hollow game. The conditions that Roberts sets for overcoming presumptive immunity, after all, are a near impossibility, just by inspection. How could a risk of criminal prosecution fail to hem in the power of the executive branch? “It is hard to imagine a criminal prosecution for a President’s official acts,” Sotomayor writes, “that would pose no dangers of intrusion on Presidential authority in the [Roberts] majority’s eyes” [Sotomayor 11]. Justice Ketanji Brown Jackson, similarly, calls Roberts’s claimed distinction between absolute and presumptive immunity “illusory” [Jackson 14].

Roberts’s whole edifice, Sotomayor shows, turns out to be sucked not from between the lines of the Constitution but from between those of the Supreme Court’s 1982 Nixon v. Fitzgerald ruling, which she calls the “one arrow in its [the Roberts majority’s] quiver” [Sotomayor 12]. An arrow shot far beyond its target, she argues. To insulate the President from civil lawsuits is to grant him a significant privilege, but to immunize him from criminal liability is to place him almost entirely above the law (even Roberts, it should be said, preserves a President’s liability for private crimes like theft or sexual assault). In Nixon v. Fitzgerald, the court weighed the vigor of the executive branch against the value of remedying private civil torts, and chose executive vigor, but even in that decision, the justices wrote that “there is a lesser public interest in actions for civil damages than, for example, in criminal prosecutions” [Sotomayor 14]. Indeed, the more powerful a public official is, the greater the public’s interest in keeping him accountable. “When Presidents use the powers of their office or personal gain or as part of a criminal scheme,” Sotomayor writes, “every person in the country has an interest in that criminal prosecution” [20]. The amount of interference to be fended off, meanwhile, is radically different. Anyone can file a civil lawsuit, however frivolous, but justice departments are constrained in issuing criminal charges by department policy and by grand juries [15]. It’s a little weird, moreover, that Roberts considers it “a great burden” for the President to have to obey laws; the Constitution already requires him to “take Care that the Laws be faithfully executed,” so presumably he’s already paying a fair amount of attention to them [18].

And it’s absurd to treat executive vigor as if it were the only governmental virtue. Jackson, in her dissent, quotes a 1926 dissent by Louis Brandeis, explaining that the separation of powers—the crux of America’s political economy—was adopted by the Framers in spite of its obvious inefficiency. “The purpose was, not to avoid friction,” Brandeis writes, “but . . . to save the people from autocracy” [Jackson 19]. If the Roberts majority genuinely valued governmental efficiency more highly than civil damages, there would have been no reason for them to rule last week, in Loper Bright, that experts in federal regulatory agencies are no longer entitled to deference in the courts when challenged by private business interests.

The list of flaws in Roberts’s reasoning goes on. Even one of the justices who concurs with him, Amy Coney Barrett, finds his willingness to exclude a President’s official acts from evidence unwarranted [Barrett5–6]—an exclusion that Sotomayor, for her part, calls “nonsensical” [Sotomayor 26n5]. Sotomayor further points out that the risk that jurors in the criminal trial of a President might be politically biased isn’t “unique” to a case like Trump v. United States, as Roberts claims, but is inextricable from any effort to hold a politician accountable in the American justice system [Sotomayor 27].

The Roberts majority doesn’t seem to want the American justice system to try. Its ruling in Trump v. United States is remarkable for the paucity of the historical evidence behind it, its slipshod construction, and its failure to balance the concerns of democracy and justice against those of executive efficiency. It is opposed in spirit to the distinction Hamilton tries to make, in Federalist No. 69, between President and king:

The President of the United States would be an officer elected by the people for four years. The King of Great-Britain is a perpetual and hereditary prince. The one would be amenable to personal punishment and disgrace: The person of the other is sacred and inviolable. . . . What answer shall we give to those who would persuade us that things so unlike resemble each other? [Federalist 69, quoted in abridged form by Sotomayor at 6–7]

In the country Hamilton helped found and frame, his question can no longer be answered.

Other means

Early in the federal indictment of former President Trump that was released yesterday, special counsel Jack Smith admits that Trump, “like every American,” has the right to say whatever he wants about the 2020 presidential election—and even has the right to lie about it. But it was a crime, Smith asserts, for Trump to use lies to obstruct and distort the tallying and certifying of election results. Smith goes on to indict Trump for conspiracy to defraud the United States, conspiracy to obstruct the certification of presidential election results, and conspiracy to deprive Americans of their right to vote.

The distinction between lying that is free of legal consequences and lying in order to commit fraud and obstruction isn’t a terribly subtle one, but there are going to be people who will pretend they don’t understand it. If Trump has the right to lie to NBC News, they will ask, why doesn’t he also have the right to lie to Georgia’s Secretary of State about Georgia’s election results? So let’s get this out of the way: If I announce at my favorite local gay bar that Ryan Gosling and I have just gotten married, and I succeed in making all my friends jealous, I’m not committing a crime. But if Gosling and I file our taxes together, falsely claiming on the forms that we’re married, in an attempt to pay less tax than we would otherwise have to, it’s fraud. And it’s still fraud even if we don’t get away with it.

There are probably also going to be people who claim that Trump and his conspirators may not have been aware that the claims they were making were untrue. Smith’s indictment shivs that defense pretty brutally. In paragraph 30 (¶30) of the indictment, to take just one bald-faced example, John Eastman, aka “Co-Conspirator 2,” acknowledges in an email that he and Trump have learned that some of the allegations in a verification they have signed are “inaccurate” and that signing a new verification “with that knowledge (and incorporation by reference) would not be accurate”—and then he and Trump go ahead and put Trump’s signature on the new verification anyway.

Yesterday’s indictment isn’t as much fun to read as Smith’s earlier indictment of Trump for withholding classified security documents, partly because a more serious matter is at stake (national security secrets are important, but they’re not as important as the right to vote, and Trump seems to have been treating the secret documents as memorabilia, anyway, a motivation so entertainingly venal that it’s hard to treat the earlier matter with the gravity it deserves) and partly because the way Trump and his allies lied—over and over again, shamelessly—is exhausting. The catalog of their lies in Smith’s indictment is practically Homeric. They lie, are told they are lying, and then tell the same lie again. Remember the years we spent trying to argue in good faith with people who were repeating lies in bad faith? These are those people. “It’s all just conspiracy shit beamed down from the mothership,” (¶25) admits a senior advisor to the Trump campaign, in a private email, dismayed by his team’s repeated losses in court and exasperated that the team’s political strategy obliges him or her to pretend publicly to believe in repeatedly debunked claims.

The particular lie that pushed this senior advisor into venting was about election workers at the State Farm Arena in Atlanta. Giuliani (“Co-Conspirator 1”) told the lie to Georgia state senators on December 3, 2020 (¶21), the lie was publicly debunked by the Georgia secretary of state’s chief operating officer on December 4 (¶23), Georgia’s attorney general told Trump there was no evidence for the claim on December 8 (¶24), Giuliani told the lie again in a public hearing before a committee of Georgia’s state representatives on December 10 (¶26), Trump’s acting attorney general and acting deputy attorney general told Trump the actions at State Farm Arena had been “benign” on December 15 (¶27), Trump’s chief of staff told him the election tallying at State Farm Arena had been “exemplary” on December 22 (¶28), Trump nonetheless tweeted that Georgia’s election officials were “terrible people” who were hiding evidence of fraud on December 23 (¶28), Trump repeated the lie to his acting attorney general and acting deputy attorney general on December 27 (¶29), Trump signed a verification incorporating the lie on December 31 (¶30), and Trump repeated the lie one more time on January 2, 2021, to Georgia’s secretary of state, during the infamous conversation when Trump said he was looking to “find” 11,780 more votes (¶31).

After Giuliani told the lie in Georgia’s House of Representatives on December 10, “the two election workers received numerous death threats,” Smith observes (¶26). The identities of the people who made those death threats are very likely unknown, but almost certainly neither Trump nor any of his co-conspirators made the threats.

Why are they nonetheless part of Smith’s indictment? If the case ever reaches trial, Trump’s lawyers may try to argue that he shouldn’t be held responsible for threats made by a third party. But keep in mind the distinction that is the crux of the case, between lying for the sake of vanity or entertainment and lying in order to obstruct or impede the workings of democracy. A death threat is not an innocuous speech act. It is a promise to use violence. A public lie about a government employee or official, if a reasonable person would expect the lie to trigger death threats, is therefore a kind of force, applied on a government employee or official with respect to the performance of their duties. “An act of force to compel our enemy to do our will”: that’s Clausewitz’s first (if less famous) definition of war. With good reason, the laws in any well-ordered republic forbid acts of war between politicians and/or citizens. Hobbes writes, in Leviathan, that “because all signs of hatred, or contempt, provoke to fight, . . . we may . . . , for a law of nature, set down this precept, that no man by deed, word, countenance, or gesture, declare hatred, or contempt of another.” In a state of war, one isn’t necessarily bound by the laws of nature, Hobbes writes, and we don’t want to be living in a state of war.

On November 11, 2020, Trump disparaged a Philadelphia City Commissioner who had said there was no evidence of voter fraud in Philadelphia, and the commissioner and his family were sent death threats (¶42). And on January 6, 2021, famously, Trump tweeted that “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution,” and one minute later, the Secret Service felt obliged to evacuate Pence to a secure location. Rioters who broke into the Capitol that afternoon chanted, “Hang Mike Pence!” (¶111–13). If Trump knows anything about himself, and it may be the only thing about himself he knows, it is that he has a gift for summoning and directing the rage of his followers. It is his instinct in a crisis, almost a reflex. Words for him are instrumental, not representative. He knew what he was doing.

The prospect of violence recurs at two other moments in the indictment. On January 3, a deputy White House counsel warned Jeffrey Clark (“Co-Conspirator 4”) that if Trump were kept in power on the basis of false claims of voter fraud, there would be “riots in every major city in the United States.” Clark replied, “Well, . . . that’s why there’s an Insurrection Act.” Clark, in other words, looked forward to repressing with military force any protest of the power grab he and his conspirators were trying to effect.

In its legal specifics, the scheme to keep Trump in power depended on the theory that Pence had the authority to reject or return to the states their slates of legitimate electors. On January 4, John Eastman acknowledged to one of Trump’s senior advisors that no court was likely to back the theory, and the advisor warned Eastman that by drumming up public fury on the strength of a theory that could never be put into effect legally, Trump and his allies were “going to cause riots in the streets.” Eastman replied that it wouldn’t be the first moment in American history when violence was needed to protect the republic (¶94). Eastman, in other words, looked forward to bolstering with street violence a legal theory he conceded was unjustifiable.

Clark looked forward to putting down rioters, and Eastman looked forward to being backed by them, but both knew that through lies they were welcoming violence into politics. Clausewitz’s second, more famous definition of war is “a continuation of political activity by other means”—the implication being that politics has its own means. To maintain the rule of law, politicians who go beyond them must be kept out of politics, if not sent to jail.