Ilya Shapiro and Josh Blackman defend the rule of law

I’m deriving a certain grim amusement from the unnatural intellectual acts that right wing law professors with an eye to the main chance are currently performing, in the face of the most corrupt and most public quid pro quo in the history of the American presidency.

First we have Ilya Shapiro on the PBS Newshour, which needless to say is trying to Both Sides the un-Both Sideable:

Well, I think it’s a disagreement of political judgment between different prosecutors. The U.S. attorney disagrees with what her superiors say. The principals are denying that there’s a quid pro quo, so we don’t quite have evidence of that. And Eric Adams, for the last year or so, has been moving in a direction to crack down on illegal immigration anyway.

So I don’t know whether he’d be behaving differently in the first place. But, ultimately, this is a judgment call. And the U.S. attorneys, whether in the Southern District of New York, which sometimes thinks of itself as its own sovereign, Sovereign District, they sometimes call it, doesn’t get to make that call at the end of the day.

And if the superiors decide that the underlying evidence is flimsy or the prosecution itself was politically motivated and doesn’t serve the purposes of justice, that’s their call to make. And, ultimately, the voters will evaluate that.

“We don’t quite have evidence of that” is a masterpiece of prevarication. Also too, apparently whether it’s OK for a federal prosecution of a crooked mayor to be dropped because it serves the president’s political interests to drop it is something that should be decided by “the voters.”

Then we have Josh Blackman, who pretends to be stupid enough to believe that the Adams prosecution is being suspended — not dropped, mind you, since the indictment has been dismissed without prejudice, meaning it can be re-filed the nanosecond that Adams stops playing ball with the administration — because Donald Trump has made a very careful study of various SCOTUS precedents regarding public corruption cases, and just has a different legal theory about the Adams case in particular. (For extra credit, he throws in that he thinks the conviction of Robert Menendez, which featured gold bars in the ex-senator’s house that had “For Services Rendered” etched into them, will be thrown out, since it too represented “lawfare.”):

In 2023, the Supreme Court decided Ciminelli v. United States and Percoco v. United States. These cases arose over scandal involving funding for a Buffalo Bills stadium project. In both cases, the Supreme Court unanimously reversed the convictions. Was it foolish to bring these cases that garnered zero votes at the Supreme Court?

Sensing a pattern? Another public corruption case pending this term, Kousisis v. United States, will likely yield a reversal. And I think the prosecution against Senator Menendez will meet a similar fate, if he is not pardoned. That doesn’t even factor in Alvin Bragg’s conviction of Trump, which will almost certainly not stand up on appeal. Lawfare all the way down. Maybe, just maybe, federal prosecutors are not in the best position to determine whether public official abused their power.

I appreciate that Scotten thinks that the Trump DOJ’s approach to criminal prosecution is “foolish.” I think much the same can be said for how federal prosecutors have approached public corruption cases for some time. And you don’t have to take my word for it. Add up all of the unanimous Supreme Court rulings.

Unanimous no less!

What we have here are two very different conceptions of the federal criminal justice system. On the one hand, Sassoon and her colleagues defend the traditional notion that “independent” prosecutors have the benighted power to define what is in the public good. They can define when public officials abuse their power, and can punish those actions with criminal sanctions. (We saw similar arguments during the first Trump impeachment.) Those defending Sassoon are invested in the DOJ club, and the continuation of its longstanding practices.

President Trump, through Bove, articulate a different perspective. The President, as head of the executive branch, can make his own determination of what is in the public good, and determine when public officials are abusing their power. Trump, perhaps more than any living person, is uniquely situated to make this sort of judgment. From the moment he was sworn in, he faced nonstop litigation (remember the Emoluments Clauses?) and two impeachment trials. After he left office, he was indicted in several courts based on novel and dubious theories of criminal liability. Who can forget the efforts to disqualify him under Section 3–which also led to a unanimous Supreme Court reversals? And despite all that happened, Trump still won re-election. Distinguished prosecutors thought they knew what was in the public good. The voters disagreed.

Blackman here is just stealing Tom Goldstein’s bit, although I hope for the sake of his students at the South Texas College of Law he isn’t about to be indicted by a federal grand jury.

Here’s a considerably more dignified work schedule than Shapiro’s and Blackman’s current employment: