David Frum: Heads, Trump Wins. Tails, We All Lose.

[babylonsister]

https://www.theatlantic.com/ideas/archive/2019/11/trump-absolute-immunity-and-supreme-court/602665/

Heads, Trump Wins. Tails, We All Lose.
Either the president will be elevated above all ordinary law, or future presidents will be hemmed in.
11:14 AM ET
David Frum


President Donald Trump’s claim of “absolute immunity” from congressional oversight went crashing to its latest defeat last night. A federal judge rejected the White House’s assertion of an executive privilege to prevent former aides from testifying before Congress. Another federal judge approved a Freedom of Information Act request for internal White House emails about Trump’s action to block military aid to Ukraine. These latest rebukes extend a lengthening losing streak for the president in court.

Trump has been losing two fights to protect his accounting records. Those records are sought both by Congress and by New York State criminal prosecutors. Trump has argued absolute immunity in both cases, and in both cases he has been rebuffed by federal appeals courts. Those two cases now seem headed to the U.S. Supreme Court.

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To date, presidents have resolved the question “Can a president be investigated and potentially indicted for state crimes?” by the excellent expedient of not committing state crimes. Trump has apparently found that too high a bar. And so the question will head to the Supreme Court to be addressed at last. It’s hard to imagine a favorable outcome for him in this case—or in any of the cases Trump is now fighting. If he loses, future and better presidents will be hemmed in, in undesirable ways. If he wins, the president will be elevated above all ordinary law.

Courts can sense as well as anyone when a legal argument is advanced in bad faith—not to protect the institution of the presidency, but to protect the personal wrongdoing of the person who happens to be president. Lady Justice is often depicted blindfolded, but the statues never suggest that her nose has been taped, too. She can smell the odor of criminality beneath the abstract claims of executive function and presidential privilege. Rightful disgust with that smell may influence her to limit today an obviously corrupt president in ways that honest presidents may rue tomorrow.

John Adams’s famous prayer, “May none but wise and honest men ever rule under this roof,” expressed more than a pious hope. It expressed a shrewd, precocious awareness of the harm awaiting the whole American system of government, state as well as federal, from a president who is both dishonest and foolish. The system just cannot work around a president whose main concern is committing and concealing wrongful acts. And that unfortunately describes the president the United States now has.

[TheRealNorth]

1. It seems to be an easy choice to me

If the tables were turned, concerns about presidential power would not stop the Republicans.