Frivolous claims when the center cannot hold

It’s hard to describe adequately how utterly absurd the claim Trump’s lawyers put in front of the DC circuit really is. The proposition that former presidents have absolute immunity from prosecution for anything they did while in office is something that doesn’t have any basis in American law. The description of this as a “novel” case is accurate in the sense that the prosecution of a former president for killing and eating babies — and given that in Trumpland EAIAC I wouldn’t necessarily treat this as a hypothetical — would also be a “novel” case.

Here’s a very rough analogy. Suppose I were to argue to a federal court that, because the Constitution guarantees each state a Republican form of government, California should have 12 senators. Now it so happens that I believe California should have 12 senators, but it also so happens that arguing that Article IV of the Constitution authorizes the federal courts to institute that salubrious reform is a frivolous argument, in the sense that it violates the following procedural rule, which limits the kinds of arguments lawyers can present to a court.

Such an argument:

(1) [ ] is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; [and]

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.

Now the thing about frivolous arguments is that they’re like Potter Stewart’s definition of obscenity: you know them when you see them. BTW I always found it amusing that people thought that was a bad definition, when in fact it’s the only definition of the concept that can actually work, sociologically speaking. Something is obscene in a particular cultural context if the relevant interpretive community considers it obscene. The notion of “objective” obscenity is an oxymoron.

The idea of a legally frivolous argument is similar, in that you need a community of interpreters — lawyers and judges — who have a sufficiently consensus view of what “the law” is that, given that consensus, some arguments are so meritless that they ought to open attorneys who make them in formal court proceedings to court sanction.

If you’re not in the MAGA cult, the argument that Trump is forever immune from prosecution for anything he did while president is one of those arguments.

And therein lies our problem.