By Kevin
D. Williamson
Monday,
March 27, 2023
“Fate, it seems, is not without a sense of irony.”
The
Fates may love a good ironic comeuppance, but the deity we are dealing with
here is their troublesome kid sister, Nemesis. And it would be more than
tragically ironic if Donald Trump, who is so lawless himself, should be the
cause of continuing lawlessness in others—not only in his underlings and
sycophants (that ship long ago disappeared under the horizon) but in his
enemies, who apparently are so possessed by the spirit of wrath that they are
willing to throw the law overboard, or at least drag it behind the boat until
it is half-drowned.
The
usual caveats apply here: We have not yet seen an indictment, and Manhattan
District Attorney Alvin L. Bragg may very well surprise. The skeleton of the
case that has worked its way into the public discourse may turn out to be
something quite different from what Bragg produces, but, even so, a great many
people have pronounced themselves not only satisfied with those rickety bones
but positively giddy about what they might in the end support. Sober-minded
legal analysts including our own Sarah Isgur and David French (if you have not
listened to their invaluable discussion of the case, do yourself the
favor) and many others who are far from sympathetic to Trump—and far from eager
to see him return to any position of power—are, in their circumspect and
lawyerly way, ringing the alarm bells.
Reemphasizing
the caveats above, the case against Trump (now, there’s a great title
for a book!) in Manhattan apparently is this: Trump
probably broke the law against falsifying business records in New York, a
misdemeanor offense with a statute of limitations that expired long ago. It is
a relatively humble charge that, according to many knowledgeable people, would
have been relatively easy to prosecute if prosecutors had pursued it, which
they didn’t. However, there exists another statute regarding the falsification
of business records, one that allows for a felony charge if the falsification
was undertaken in the furtherance of another crime. That, apparently, is the
charge Bragg intends to pursue.
There
are some immediately apparent formal legal problems with that strategy: For one
thing, the five-year statute of limitations on the felony charge also has
passed, and the prosecutor would be relying on a procedure that allows for
halting the countdown when the defendant is continuously out of state. For
another thing, charging Trump with falsifying business records to cover up
another crime is going to be tricky in this situation because, as far as the
law is concerned, there is no other crime. The posited crime is a
campaign-finance violation, and I would be the least surprised man on Earth if
the Trump gang was guilty of 55,781 of these, but he was never charged with the
crime in question, much less convicted of it. And that crime is a federal
crime, whereas Bragg is a local prosecutor in New York. That means that he
cannot charge Trump with the federal offense, which has been considered by the
Justice Department, which declined to prosecute it not only during the Trump
administration but also during the Biden administration. Which is to say, he
would be charging Trump not only with the falsification of records but also, in
effect, charging him with a second federal offense that federal prosecutors
declined to pursue, arguing that Trump should be treated as nonetheless guilty
of this hypothetical offense that Bragg cannot try himself.
No one
ever has been charged, much less convicted, in the way Bragg apparently means
to go after Trump.
Do you
know what this looks like to my non-lawyer’s eyes? It looks like the kind of
thing that the Trump administration might have tried if it had had the energy
and creativity to conceive of it. There is a time for vengeful spirits—but you
had better dot every i and cross every t. And if
you mean to play Nemesis to the lawless Trump gang, then you had better be
occupying a legal position that is at least defensible and respectable if not
impregnable.
Adolf
Hitler, who must in this instance be regarded as a subject-area expert, once
observed that the great strength of totalitarian states is that they force
those who fear them and oppose them to imitate them. (That proved tragically
prescient in the case of Franklin Roosevelt, whose administration made war
against the builders of concentration camps while building concentration camps,
defending these as a wartime exigency.) To undermine the rule of law in the
quest to punish Trump et al. for undermining the rule of law would be a
grotesque misapplication of the legal machinery and the moral spirit animating
it. It would also be a blunder, tending to buttress Trump’s inevitable claims
that what he is facing is not prosecution but persecution and undermining the
other legal efforts to bring Trump and his enablers to justice, such as the
Georgia case—which is, in the eyes of our legal experts here at The
Dispatch and elsewhere, probably much stronger.
This
could have been headed off in any number of ways: If Republicans had had the
patriotism to put nation over party—or even sufficient healthy partisanship to
put the long-term interests of the Republican Party over their own short-term
interests—then Trump would have been convicted in his post-January 6
impeachment and barred from public office. A self-respecting country would see
to it that neither Trump nor any of his enablers ever came close to public
office again, starting with Mike Pence (who suddenly sprouted a conscience at
the precise moment that furthering Trump’s ghastly abuses ceased to be
profitable to him) and going deep into the list of political appointees,
advisers, and sundry lackeys. But we do not live in a self-respecting country—we
live in the United States of America.
Trump
should be prosecuted where the law allows for it and where the law calls for
it. One might make a kind of domestic Realpolitik argument for
prosecuting him as a matter of civic hygiene—if one believed that a
successful (or even a failed) prosecution of Trump would provide a prophylactic
against his future political success. But it would be a mistake to believe
that. Even a strong, slam-dunk prosecution of Trump might serve only to deepen
his followers’ sense of persecution, idiotic and unjustified as it is, and a
weak prosecution would be much worse: Their bond with Trump is a
quasi-religious (specifically, idolatrous) one, and he will be
perfectly happy to play the suffering messiah who absorbs the abuse of the
wicked on their behalf, provided he gets to go on sleeping in his own bed.
Legal action against Trump should be undertaken on legal bases, not on moral or
political bases.
Yes,
prosecute Trump for crimes where there are crimes for which to prosecute him.
Nobody would be better pleased than I to see him in accommodations measuring
roughly 6-by-8. But the work of protecting this country and its institutions
against Donald Trump and what he stands for is not mainly a job for
prosecutors: It is a job for educators and evangelists, for citizens, for
patriots, and, God help us, for politicians, including those politicians who
remain attached to that debased thing that still has the shockingly bad taste
to call itself the Republican Party even though it is by no means republican and,
arguably, no longer even really a party but a cross between a
cult and massive group-therapy session for angry elderly white people.
So, a
message to the lawyers from all of us non-lawyers: You had better get this
right.
Economics
for English Majors
A few
people got all sorts of hot and bothered about my Dispatch column arguing that New York state’s housing
problem is not mainly a zoning matter. There was anger left and right, which is
always reassuring.
I’ll
revisit a few points:
The
first thing to know about New York’s housing shortage is that, as an empirical
matter, New York does not have a housing shortage. The state has
about 1 million vacant properties as of the most recent survey, and it is
losing nearly 200,000 residents a year. New York City has enough abandoned
properties that it could give four of them to every homeless person or family
in the city. There are estimates—not from crusty old libertarians but from
progressive groups—that there are tens of thousands of rent-stabilized
properties that have been taken off the market by owners who do not wish to
rent them for the rates the law would require and prefer, instead, to keep them
empty for some time. Somebody wrote to denounce me as a “vacancy truther” for
accepting that claim, which makes me smile. There are, of course, costs
involved in being a landlord, for example spending money on necessary repairs
to apartments and other expenses that can be delayed by keeping the property
off the market. That doesn’t sound like much of a conspiracy to me—that sounds
like an example of how price controls create scarcity, an utterly
uncontroversial economic truism.
New York
state’s vacancy rate is about the same as Florida’s, right around 11 percent,
which is not far off the national average. New York City in particular has a
reputation for being very expensive, but it would be much more accurate to say
that the New York neighborhoods everybody wants to live in are very
expensive—high demand will do that to prices!—while you can still buy a modest apartment in the city for
less than $100,000,
if you don’t mind living in the Bronx. (Which you shouldn’t mind—the Bronx is great.)
You can buy a three-bedroom rowhouse in New York City for less than
$600,000—but not in Tribeca.
Bad
governance has ruined a lot of New York neighborhoods and, rather than address
the real problems—crime, schools, transportation, economic development—what
Gov. Kathy Hochul proposes is to centralize zoning decisions at the state level
in order to try to bully suburbs into permitting more apartment buildings,
particularly near transit hubs. I myself think dense development is good for
cities and inner suburbs, and I much prefer the loosey-goosey zoning habits of
Houston (even with their occasionally comic or wince-inducing results) to the
market-suffocating practices of, say, Greenwich. But, being a conservative, I
also believe in subsidiarity: As a former small-town newspaper editor who has
been to more planning-and-zoning meetings than I care to remember, I know that
we typically make zoning policy at the local level for a good reason—because it
is an inherently local issue. This really seems to confuse some people: I want
local authorities in charge of local things such as zoning and schools, even
when that means that the local authorities will, from time to time, adopt
policies other than those I would prefer. I have policy preferences, but I also
have procedural preferences. I believe that an intelligent and responsible
approach to government requires both.
I don’t
want to go off into a whole civics tangent here—this is Economics for English
Majors, not Politics for English Majors—but one of the big differences between
conservatives and progressives (and between conservatives and ideologues)
is that conservatives put a lot more stock in procedure and process, whereas
progressive often are willing to run roughshod over these in pursuit of
outcomes that they believe to be self-evidently desirable and reasonable. E.g.:
I am very, very skeptical of so-called red-flag laws that empower governments
to suspend the civil rights of people who have not been convicted of any crime,
or even charged with any crime. My progressive friends (and some conservatives,
too) argue that the outcome (that the police are able to take away guns from
people who lawfully own them but who are seen as presenting a threat) is so
desirable that we don’t need to worry very much about due process. (And because
they don’t think that the Second Amendment protects a real civil right, they
take a pretty flinty view of what process is due to begin with.) Progressives
don’t really care what the Constitution says about abortion (which, inconveniently
for their case, is: nothing), they have a preferred outcome in mind
and will take any constitutional justification they can get, however
implausible, to achieve the outcome. I myself am anti-abortion (you may have
heard this about me), but I do not believe that the Constitution mandates an
anti-abortion position. Process matters. How we achieve our preferred policy
outcomes matters a great deal.
That
being the case, I do not see any contradiction between preferring a more
liberal (meaning more Houstonian) zoning policy and opposing Gov. Hochul’s
proposals to override local zoning laws.
And if
you’ll forgive my ending with a Kirkian observation: Different communities
are different. The people who are always lecturing us about the
glories of diversity never seem to quite get that. There isn’t any reason for
every community in New York—or any other state—to be subject to the same rules
concerning local zoning and development.
Words
About Words
I will
here repeat my praise for Sarah Isgur and David French’s commentary on the
(possible) Trump indictment, offered above. All praises, etc. But a quibble
about language: David and Sarah described the prosecution as a “bank-shot” and
then as a “double bank-shot,” with Sarah adding that a double bank-shot was in
keeping with other big news of the day, that being “March Madness,” the NCAA
basketball tournament.
There
are bank-shots in basketball. But there are no double bank-shots
in basketball. Double bank-shots are for billiards. Hey, it was a
podcast—everybody gets a little fuzzy from time to time when speaking
extemporaneously, and I’m not one to cast aspersions here. Just making a
language point or two.
A
bank-shot in basketball is a shot in which the ball is bounced off the
backboard into the hoop. You can see how a double bank-shot would be
unlikely—bouncing off the backboard twice or, I suppose, bouncing off both
backboards.
A
bank-shot in billiards is when either the cue ball or the object ball (the
ball the cue ball is aimed at) bounces off the side of the table (the rail,
with its cushion) and into the pocket. A double bank-shot entails
two bounces—a lot easier in billiards than in basketball.
(You
can, apparently, execute a double bank-shot in hockey.)
Also:
Why
write billiards, a fancy-sounding word, rather than the more
common pool?
For one
thing, the professionals call the game billiards, and the pros
usually deserve some deference. For another, billiards encompasses
a number of games: pool, what we call English billiards, snooker,
etc.
Billiards
has some pretty interesting vocabulary. There are the strings: head
string, center string, and foot string, which divide the table into four equal
sections; and the long string, which bisects the table lengthwise. Where the
long string intersects the head string is the head spot. The field
of play between the head rail and the head string is the kitchen,
whence (not from whence!) the opening break is made. The lines
are different on tables set up for snooker, with the baulk line cordoning
off one-fifth rather than one-quarter of the table, the baulk being
snooker’s answer to the kitchen.
Pool
comes from a form of gambling in which all of the bettors put their money into
a single pot (or pool), a format of wagering used for all kinds of games, from
cards to—according to our friends at the Online Dictionary of Etymology—throwing things at a chicken:
Perhaps
the original notion is from jeu de la poule, supposedly a game in
which people threw things at a chicken and the player who hit it, won it, which
speaks volumes about life in the Middle Ages. The notion behind the word, then,
is ‘playing for money.” The connection of “hen” and “stakes” is also present in
Spanish polla and Walloon paie.
The
derivation is a little murky, but it seems to be the case that racetracks set
up gaming rooms, with both card games and billiards, to amuse gamblers between
races, and that these became known as pool rooms, and
so—presto-change-o!—pool room became the name for a place where billiards is
played and then pool became the name for a particular
billiards game.
The
Indo-European root of pool is pau, meaning few or small,
and it also is the basis of words ranging from pauper and poverty to pupil to paucity to poultry to puerile,
from the Latin puer, meaning boy.
In
Other Wordiness …
You may
have stumbled on one or two things above: First, yes, bases is
the plural of basis. It looks a little weird because it also is the
plural of the closely related word base.
Second:
Yes, I meant to write concentration camps. American concentration
camps, in which people of Japanese background (and, in a smaller number of
cases, German and Italian backgrounds) were interred, were not the same as
German concentration camps, in which Jews and others were systematically put to
death. But they were concentration camps nonetheless—Merriam-Webster: “a place
where large numbers of people (such as prisoners of war, political prisoners,
refugees, or the members of an ethnic or religious minority) are detained or
confined under armed guard.” One should always be careful when using words with
Holocaust associations, of course, but the shock of the words concentration
camp are, in this instance, both intended and entirely
warranted.
And
Furthermore …
If I
wanted to write a parody of how an exquisitely miseducated person writes and
thinks, I couldn’t do better than the real thing from Karen Attiah in
the Washington Post.
Elsewhere
Why are
so many New Yorkers moving to Florida? Florida has had sunshine and lower taxes
for a long time—since, well, forever—but the New York-to-Florida
exodus really picked up with COVID—not because of the virus itself, but because
of the heavy-handed reaction to it. More in the New York Post, the
nation’s oldest continuously published daily newspaper—whatever the Providence
Journal claims.
Also
also … I have a longstanding view that the environmental movement is mainly
religious rather than political in character. In fact, I wrote a series of
pieces about that over the course of a year with the support of my friends and
colleagues at the Competitive Enterprise Institute, who got me into the U.N.
climate conference in Glasgow. CEI has now put those together in a little
monograph, with a very kind foreword by our friend Dan Hannan, formerly of the
European Parliament and currently of the U.K. House of Lords (who doesn’t
actually go by “Baron Hannan of Kingsclere,” which is pretty cool-sounding as
titles go) and an afterword by CEI’s Kent Lassman, along with some amendments
and expansions and amplifications from me. You can check it out here. I talked about it this morning on Julie
Mason’s SiriuxXM “POTUS Politics” program, if you were up early–if not, I
believe you can listen to excerpts online.
In Closing
Do you
have something that makes you want to dismiss a piece of writing or argument
out-of-hand? I have a lot of those things, I suppose, and one of them is the
promiscuous use of the word “scary,” as in this recent Slate headline:
“Republicans Have Revived
a Scary 1980s Tactic for Breaking Democracy.” That “scary tactic” is “breaking
democracy” in the strangest way: by means of a law democratically passed by the
democratically elected state legislature of Kentucky. In this case, the law
would change how Kentucky handles Senate vacancies—rather than giving the
governor free hand to name whomever he pleases, the Kentucky governor would
instead be obliged to choose from a list of three candidates drawn up by the leaders
of whichever party the retiring senator belongs to. It is a dumb policy, to be
sure, but an entirely democratic one. If democracy means
anything, it means that democratically elected lawmakers make the laws,
including dumb laws. If you think that is “scary,” you need to get out more.
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