Teri Kanefield @Teri_Kanefield Author, lawyer (U.C. Berkeley). I tweet about the law, books, politics, and history. All my threads are here: t.co/vdLoEAoLvv as blog entries Dec. 26, 2018 3 min read

(Thread) 

Our institutions [appear to be] holding out against Trump’s onslaught.

Well, other than the GOP, which caved completely. 

[For some background on why the GOP is enabling Trump, see:

& this thread on authoritarianism: ]

1/ Prosecutorial discretion and independence is a pillar of democracy. In autocracies, the autocrat decides who will be investigated and prosecuted.  https://definitions.uslegal.com/p/prosecutorial-discretion/ 

In our system, prosecutors decide.

Trump has tried hard to bring prosecutors under his control.

2/ He fired Comey, raged at Sessions for recusing (even though the rules required it) installed Whittaker, and so on.

Remember the reports that Trump lashing out to Whitaker in frustration (at least twice!) that the Mueller probe was continuing?
 https://www.cnn.com/2018/12/21/politics/trump-lashed-out-at-whitaker-after-explosive-cohen-revelations/index.html 

3/ It’s obvious that Trump’s behavior was outrageous and inappropriate.

It also seems obvious to me that if Trump is lashing out over revelations that came to light about Michael Cohen, it means Trump is frustrated that he can't get anyone to stop the investigations.

4/ Which means nobody (including Whitaker) is controlling and impeding the investigation.

Whitaker has an incentive NOT to actually impede the investigations: He’s a prosecutor and, I assume, wants a career as a prosecutor after Trump.
Besides, I've argued that he can't.

5/ It's too late to put the genie back into the bottle. Mueller is spreading the evidence other prosecutors. Mueller knows the ropes better than Whitaker, etc.

The onward march of the investigations tells me that prosecutorial independence is withstanding Trump's onslaught.

6/ Another democratic institution: A free press.

Trump is doing his best to bring the press under his control.
 https://www.huffingtonpost.com/entry/2018-bad-year-journalists_us_5c1d8414e4b05c88b6f8bf45 
He encourages & closes his eyes to violence against journalists, he calls the press the "enemy of the people," he openly bullies journalists.

7/ But still the press stands independent.

Finally, the Courts.
Yes, Trump will install right wing judges.

I have also seen panic over the possibility that SCOTUS will allow Trump to escape accountability or pardon himself & co-conspirators.

Let's think that through.

8/ If Trump can pardon himself or his associates, he is effectively a dictator, because he can do anything he wants and pardon himself.

Here’s a cynical reason why SCOTUS won’t allow such a thing:
The Court has lots of power. If it enables an autocrat, it loses its power.

9/ When SCOTUS decides a case, they are also setting a rule for future cases. It's callsed precedent:
 https://www.law.cornell.edu/wex/precedent 

If SCOTUS rules that Trump can pardon himself, Trump in the future can commit any crime and pardon himself.
See where that can lead?

10/ Suppose Trump wants a particular justice off the court. If he can pardon his associates, what stops him from telling someone to—let’s just say—cause a little accident that renders a justice unable to serve? Trump then pardons that person.

11/ Any ruling that puts Trump above the law also takes away the Court’s power and autonomy and makes the justices vulnerable to Trump’s rages.

Why would they do that?

There’s also a non-cynical reason the justices won’t do it: They value democracy.

12/ Like @tribelaw, I believe Roberts is trying to maintain the Court's integrity.


For people who say, “But what about Bush v. Gore,” — yeah, the Court lost a lot of credibility with that, and they’ve been trying to repair the damage.

13/ Remember👇

Other institutions limit Trump’s power: States retain a lot of control.
Soon Dems will take control of the House.

It seems to me that enough people are rising to the national emergency so that we can get past this and repair the damage.

 https://www.nytimes.com/2018/12/23/us/politics/chief-justice-john-roberts-supreme-court.html 

14/ I expect the next year will be rough, but when this is a movie, the plot will go like this:

Trump and decades of GOP norm-breaking brought the U.S. to the brink of a regime change.
Then liberal democracy in America was saved by the strength of our democratic institutions.

This thread is also a blog post here:  https://terikanefield-blog.com/our-institutions-are-withstanding-trumps-onslaught/ 


You can follow @Teri_Kanefield.



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