Law & the Courts

Barr Is Right About the Prosecution Power

Attorney General William Barr testifies on Capitol Hill, July 28, 2020. (Chip Somodevilla/Reuters)

Attorney General Bill Barr gave a speech at Hillsdale College on Wednesday that attracted a lot of attention. Much of that attention was for his ill-considered remark (in a question-and-answer session following the speech) that “Other than slavery, which was a different kind of restraint, [the pandemic lockdowns are] the greatest intrusion on civil liberties in American history.” The mere mention of slavery tends to overshadow all else (even though he was explicitly not making that comparison), and even accepting Barr’s own terms, the lockdowns are still not comparable to 75 years of Jim Crow or the internment of Japanese Americans, to pick two glaring examples.

The speech itself, however, deserves more careful thought, with renewed attention on the constitutional separation of powers, and it is worth reading in its entirety. Barr’s central argument draws heavily on the “unitary executive” theory laid out in Justice Scalia’s famous Morrison v. Olson dissent — a theory of executive power that was dominant from the American Founding through the Civil War. Specifically, Barr argues that the executive power over federal prosecutions properly and constitutionally rests with the president and with presidential subordinates who answer to the president, rather than with unelected, unaccountable, permanent civil servants:

The most basic check on prosecutorial power is politics. . . . But political accountability — politics — is what ultimately ensures our system does its work fairly and with proper recognition of the many interests and values at stake. Government power completely divorced from politics is tyranny . . . it has become fashionable to argue that prosecutorial decisions are legitimate only when they are made by the lowest-level line prosecutor handling any given case. Ironically, some of those same critics see no problem in campaigning for highly political, elected District Attorneys to remake state and local prosecutorial offices in their preferred progressive image, which often involves overriding the considered judgment of career prosecutors and police officers. But aside from hypocrisy, the notion that line prosecutors should make the final decisions within the Department of Justice is completely wrong and it is antithetical to the basic values underlying our system. The Justice Department is not a praetorian guard that watches over society impervious to the ebbs and flows of politics. It is an agency within the Executive Branch of a democratic republic — a form of government where the power of the state is ultimately reposed in the people acting through their elected president and elected representatives . . .

The same process that produces these officials also holds them accountable. The elected President can fire senior DOJ officials at will and the elected Congress can summon them to explain their decisions to the people’s representatives and to the public. And because these officials have the imprimatur of both the President and Congress, they also have the stature to resist these political pressures when necessary. They can take the heat for what the Justice Department does or doesn’t do. Line prosecutors, by contrast, are generally part of the permanent bureaucracy. They do not have the political legitimacy to be the public face of tough decisions and they lack the political buy-in necessary to publicly defend those decisions. Nor can the public and its representatives hold civil servants accountable in the same way as appointed officials. Indeed, the public’s only tool to hold the government accountable is an election — and the bureaucracy is neither elected nor easily replaced by those who are.

This is absolutely correct, and how the system is designed. Of course, where it gets much stickier is when federal prosecutors are on the trail of the president himself, his friends, or his enemies. Our system was not designed for that; at the Founding, there were few federal crimes and no Department of Justice (which was created in 1870). To the contrary, the most mischievous political crime on the books — treason — was explicitly limited in the Constitution. But every procedural tool created to remedy the problem has created problems of its own, which is why I have proposed both a modest method for protecting special-counsel investigations by triggering mandatory disclosures to Congress if the special counsel is fired, and, more structurally, the creation of a separate department for handling political-corruption cases, so that controversies of this nature do not unduly distract from the rest of the Justice Department’s work. In either case, however, the ultimate power remains with the president, and the ultimate remedy with the voters.

While Barr is right in theory, he has been subjected to a lot of criticism in practice for his handling of cases involving the president’s friends. I have defended the push to drop the Michael Flynn prosecution, which should not have been brought. Roger Stone was properly prosecuted and very improperly given clemency by the president (reportedly over Barr’s objections); Barr was involved in pressing for a less draconian but still substantial sentence, which was a more defensible stance given the absurd sentence originally proposed. He has been called, properly enough, to defend that role before Congress, and to answer for it to the DOJ Inspector General. But the IG can only deliver a report; what the House can do, if it genuinely believes that Barr has crossed a line, is impeach him or defund his department.

Barr makes two other cases, besides the constitutional design, for why the attorney general, unless recused from a case, must have the power to supervise all prosecutions. One is the nature of management and its relationship to accountability:

[D]evolving all authority down to the most junior officials does not even make sense as a matter of basic management. Name one successful organization where the lowest level employees’ decisions are deemed sacrosanct. There aren’t any. Letting the most junior members set the agenda might be a good philosophy for a Montessori preschool, but it’s no way to run a federal agency. Good leaders at the Justice Department — as at any organization — need to trust and support their subordinates. But that does not mean blindly deferring to whatever those subordinates want to do.This is what Presidents, the Congress, and the public expect. When something goes wrong at the Department of Justice, the buck stops at the top.

The other is the very principle against which Barr’s handling of Flynn and Stone must be judged: consistent application of the rule of law:

The essence of the rule of law is that whatever rule you apply in one case must be the same rule you would apply to similar cases. Treating each person equally before the law includes how the Department enforces the law. We should not prosecute someone for wire fraud in Manhattan using a legal theory we would not equally pursue in Madison or in Montgomery, or allow prosecutors in one division to bring charges using a theory that a group of prosecutors in the division down the hall would not deploy against someone who engaged in indistinguishable conduct.

Barr also made the case for a broader rethinking — the sort long pressed by the criminal defense bar — of how DOJ stretches the law:

One area in which I think the Department of Justice has some work to do is recalibrating how we interpret criminal statutes. In recent years, the Justice Department has sometimes acted more like a trade association for federal prosecutors than the administrator of a fair system of justice based on clear and sensible legal rules. In case after case, we have advanced and defended hyper-aggressive extensions of the criminal law. This is wrong and we must stop doing it. The rule of law requires that the law be clear, that it be communicated to the public, and that we respect its limits. We are the Department of Justice, not the Department of Prosecution. We should want a fair system with clear rules that the people can understand. It does not serve the ends of justice to advocate for fuzzy and manipulable criminal prohibitions that maximize our options as prosecutors. Preventing that sort of pro-prosecutor uncertainty is what the ancient rule of lenity is all about. That rule should likewise inform how we at the Justice Department think about the criminal law. Advocating for clear and defined prohibitions will sometimes mean we cannot bring charges against someone whom we believe engaged in questionable conduct. But that is what it means to have a government of laws and not of men. We cannot let our desire to prosecute “bad” people turn us into the functional equivalent of the mad Emperor Caligula, who inscribed criminal laws in tiny script atop a tall pillar where nobody could see them.

This is, again, a standard that Barr can and should be held to. The white-collar business and political defense bar has drawn, properly, a lot of attention to the nebulous uses of criminal law, including the many process and regulatory crimes in the federal criminal code — a good many of which involve the violation of some regulation never written by Congress, and which do not require proof of criminal intent. But DOJ also has an obligation to apply these same principles in considering how it prosecutes drug cases, immigration-related crimes, and other areas where defendants tend to be poorer and less well-represented.

Barr’s other major warning was about the overcriminalization of politics — a longstanding complaint of conservatives, but an ironic one from the attorney general of a president who led “lock her up” chants on the campaign trail:

If criminal statutes are endlessly manipulable, then everything becomes a potential crime. Rather than watch policy experts debate the merits or demerits of a particular policy choice, we are nowadays treated to ad naseum speculation by legal pundits — often former prosecutors themselves — that some action by the President, a senior official, or a member of congress constitutes a federal felony under this or that vague federal criminal statute.  This criminalization of politics is not healthy.  The criminal law is supposed to be reserved for the most egregious misconduct — conduct so bad that our society has decided it requires serious punishment, up to and including being locked away in a cage. These tools are not built to resolve political disputes and it would be a decidedly bad development for us to go the way of third world nations where new administrations routinely prosecute their predecessors for various ill-defined crimes against the state. The political winners ritually prosecuting the political losers is not the stuff of a mature democracy.

The Justice Department abets this culture of criminalization when we are not disciplined about what charges we will bring and what legal theories we will bless. Rather than root out true crimes — while leaving ethically dubious conduct to the voters — our prosecutors have all too often inserted themselves into the political process based on the flimsiest of legal theories. We have seen this time and again, with prosecutors bringing ill-conceived charges against prominent political figures, or launching debilitating investigations that thrust the Justice Department into the middle of the political process and preempt the ability of the people to decide. This criminalization of politics will only worsen until we change the culture of concocting new legal theories to criminalize all manner of questionable conduct. Smart, ambitious lawyers have sought to amass glory by prosecuting prominent public figures since the Roman Republic. It is utterly unsurprising that prosecutors continue to do so today to the extent the Justice Department’s leaders will permit it.

The particular threat of overcriminalizing politics is that political investigations tend to be lengthy, leaving public officials under a cloud long before anybody has charged them with anything. And it can be abused in obvious ways. State prosecutors have brought some of the worst ones in recent years: the abusive prosecution of Rick Perry for trying to oust a DA who abused her office when arrested for DWI, the Wisconsin and California investigations targeting conservative donors, the California prosecution of David Daleiden for undercover journalism against Planned Parenthood.

The test of Barr’s commitment to this principle will come with the work of John Durham, who is investigating the Russiagate investigators. Durham has thus far brought only one case, and is reportedly under some fairly intense pressure to wrap up his investigation soon, perhaps in time for the election. Neither Durham nor Barr should be rushing things on a political calendar. The rule of law demands that Durham bring charges if they are well-founded, and doing so will promote respect for the idea that federal prosecutors and investigators are not themselves above the law. But if Durham brings charges that require creative or aggressive readings of the law, then both he and Barr should be criticized for violating Barr’s own standards.

In order to be held to standards, you must first have some. Barr’s speech lays out a strong case for how the Department of Justice should work. Where he can be charged with failing to follow those standards himself, it is up to political actors and voters to hold him to account.

Law & the Courts

The Nomination Process Is Straightforward

Justice Ruth Bader Ginsburg speaks at a conference in Long Beach, Calif., October 26, 2010. (Mario Anzuoni/Reuters)

With the passing of Ruth Bader Ginsburg, there is a vacancy on the Supreme Court. We will now watch a frenetic debate over whether it is “proper” for the Republican Senate to fill that vacant seat before the presidential election.

​​I must confess that, while I accept that the history is certainly on the side of filling it, I have never found this debate especially meaningful. As I wrote when Antonin Scalia died, this is an entirely straightforward question, the details of which are the same at all times within the cycle. In our system, the president gets to nominate a justice, and the Senate gets to decide whether to accept that nomination, to reject that nomination, or, if it likes, to completely ignore that nomination. This was true in 2016, and it is true now. The game requires both players. If they are both willing, the vacancy is filled. If one is not willing, the vacancy remains. And that, ultimately, is all there is to it.

Law & the Courts

What Will Trump Do?

President Donald Trump speaks at a campaign rally at Bemidji Regional Airport in Minnesota, September 18, 2020. (Tom Brenner/Reuters)

R.I.P. Ruth Bader Ginsburg.

As a matter of pure self-interested calculation, I would expect Donald Trump to try to get a new Supreme Court justice confirmed before the election. That will provide exactly the kind of galvanizing fight that he thrives on, and he has more to gain from giving Republicans something to fight for right now than he does from giving Democrats one more reason to want to beat him in November. Trump either wins reelection (less likely) or (more likely) sets himself up to go out in a blaze of glory — provided that Mitch McConnell can actually deliver the votes.

I can only imagine the conversations going on right now. After the Kavanaugh fiasco, there are many Republicans who would love to rub Democrats’ noses in it. And when Republicans say that the Kavanaugh fight was an open invitation from Democrats to fight dirty on Supreme Court nominations, they won’t be entirely wrong. What are the Democrats going to accuse the nominee of this time? Cannibalism? Inventing the coronavirus?

I find it hard to imagine Trump’s sitting on this one until after the election.

Law & the Courts

McConnell: Supreme Court Nominee Will Receive a Senate Vote

Sen. Mitch McConnell (R., Ky.) (Mary F. Calvert/Reuters)

In response to the news that Supreme Court Justice Ruth Bader Ginsburg died on Friday evening at the age of 87, Senate majority leader Mitch McConnell issued the following statement:

The Senate and the nation mourn the sudden passing of Justice Ruth Bader Ginsburg and the conclusion of her extraordinary American life.

Justice Ginsburg overcame one personal challenge and professional barrier after another. She climbed from a modest Brooklyn upbringing to a seat on our nation’s highest court and into the pages of American history. Justice Ginsburg was thoroughly dedicated to the legal profession and to her 27 years of service on the Supreme Court. Her intelligence and determination earned her respect and admiration throughout the legal world, and indeed throughout the entire nation, which now grieves alongside her family, friends, and colleagues.


In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.

By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise.

President Trump’s nominee will receive a vote on the floor of the United States Senate.

“Twenty-nine times in American history there has been an open Supreme Court vacancy in a presidential election year, or in a lame-duck session before the next presidential inauguration,” Dan McLaughlin noted in a recent article for National Review. “The president made a nomination in all twenty-nine cases.”

“In the absence of divided government, election-year nominees get confirmed,” McLaughlin wrote. “[A]n election year alone is not the historical rule [for holding a seat open]. It is not what Mitch McConnell said at the time [in 2016], and it is not what Grassley said at the time, either.”


Pancreatic Cancer: An Insidious Disease


Justice Ruth Bader Ginsburg left our world for a better one today. Ginsburg was the consummate American and patriot, and if there’s a comforting thought to be had this evening, it’s that she’s been reunited with her friend: the late, great Justice Antonin Scalia.

The Supreme Court announced that Ginsburg died of “complications of metastatic pancreas cancer.” There’s so much to say about this awful disease. It accounts for 3 percent of cancer cases in the U.S. but 7 percent of cancer deaths. That’s because it has the lowest five-year survival rate of all major cancers at about 9 percent. Even the less threatening, local disease — which is rare — has a survival rate of only 37 percent. It takes the third most lives of any cancer every year, behind only lung and colon/rectal cancer. In 2020, the American Cancer Society predicts that almost 58,000 Americans will be diagnosed with the disease and over 47,000 Americans will die.

When my grandfather was diagnosed with pancreatic cancer in 2009, I was about to start the sixth grade, and my family was moving into my grandparents’ house because my dad had just quit his job to go back to school. We all were aware of the grim prognosis, and we were devastated. Nevertheless, my grandfather, a practicing psychologist, didn’t seem to slow down a bit. He kept participating in family wiffle ball games, he never made a peep about the pain, and he even would drop me off at school every day at seven in the morning on his way to work. It went on like this for around seven or eight months. We couldn’t believe it. It turned on a dime though, as pancreatic cancer is wont to do. Suddenly the man who was driving me to school in the morning was spending most of his time in a hospital bed they put in his room. Nine months after his diagnosis, he passed away.

I don’t know exactly how Ruth Bader Ginsburg’s cancer progressed. I do know that it’s remarkable that she did not succumb to this insidious ailment until eleven years after she first underwent surgery for it. It was characteristic of Justice Ginsburg to beat the odds. But I doubt that that makes tonight any easier for her family. No matter how well the patient seems to be doing or how long they’ve been fending it off, pancreatic cancer never seems to surrender. We should all strive to be equally relentless in our own pursuit of more awareness, better treatments, and — this evening in particular — treating each other with decency and respect. It’s what Justices Ginsburg and Scalia would want from us.


Thirty Things That Caught My Eye Today: Never Again, Love & Marriage, Happy New Year & More (September 18, 2020)



2.  There were 5 priests in Aleppo, Syria: 2 died of COVID-19

3. Summer wave of dementia deaths adds thousands to pandemic’s deadly toll

4. Some better news for these poor people locked in their rooms for months in nursing homes

5. Lebanon’s Maronite patriarch calls for all parties to adopt ‘active neutrality’


7. Why UAE’s landmark deal with Israel is bad for Turkey – Al-Monitor: the Pulse of the Middle East

8. Louis Brown in First Things: Black Lives Matter and the Christian

9. Andrew Sullivan:

This week, I watched videos of people literally burning Harry Potter books, like latter-day Nazis, in the cause of transgender liberation. It’s safe to say, I think, that many of these people have lost their minds — just by staying online. And they not only think they’re perfectly sane; they think they’re heroes.

10. Religious Liberty and this SCOTUS term, from the Becket Fund

11.  NPR: The Complicated Importance of Abortion To Trump Voters

12. Ramesh: The Biden Agenda: Let’s Talk About the Courts, Congress, and Abortion


14. Defend Religious Freedom in the US and Abroad

15. Samuel Gregg: The Perennial Problem of Executive Power

16. Wonderful Marlo Safi: Man Caught On Video Destroying Statue Of Virgin Of Guadalupe At New York Catholic Church

17. US bishops commend HUD plan to allow homeless shelters to serve on basis of sex

18. A martyr of charity? Pope remembers priest slain this week by homeless man he helped



21. George Weigel: A Man for Strengthening Others

22. Waiting for the “Spring”



25. The Virtuous Ruler: Hildegard of Bingen and the Question of Authority in Just War

26. The Unsung Russian Forerunner of the Death Penalty’s Demise in Catholic Teaching

27. Reason: Every Political Ad Ever

28. BLM Rioters Awarded Nobel Peace Prize | The Babylon Bee

29. I resemble this:



Authoritarian Scotland


When it’s not coming up with ways to erode freedom of speech, the Scottish government is introducing policies to undermine freedom of assembly. Not only are Scots — like their English counterparts — no longer allowed to assemble in their homes in groups larger than six, they are now being encouraged by the First Minister, Nicola Sturgeon, to report their neighbors to the police, should they suspect them of breaking this sacred social-distancing rule.

From the handshake to mandatory office attendance, COVID-19 may serve to permanently undermine many human customs and conventions. Let’s hope democracy isn’t one of them.


Anti-Exploitation Organizations Weigh in on Cuties


There is no context in which sexualizing children is acceptable. If you believe that, you will also consider the French movie Cuties to be unacceptable. This moral objection is obvious and straightforward and has nothing whatsoever to do with the filmmaker’s noble intentions or any other artistic merit the movie may possess. Yet there are some commentators (as Alexandra DeSanctis has pointed out) claiming that only wacky right-wing conspiracy theorists or those trying to undermine children of color, would hold this view. Two recent interventions suggest otherwise.

The National Center for Missing & Exploited Children (NCMEC) released an open letter on the movie, explaining:

On many occasions, the entertainment industry has played a valuable role by offering constructive social commentary and highlighting the many threats facing our children. However, regardless of intent, any portrayal of a child that objectifies them or depicts them in an indecent or exploitative way is cause for great concern. We encourage people to learn more about the true harm of child sexual exploitation from NCMEC and other organizations dedicated to the protection of children.

Lina Nealon of the National Center on Sexual Exploitation also offered clear-sighted analysis:

While we commend Maïmouna Doucouré for exposing the very real threats to young girls having unfettered access to social media and the internet, we cannot condone the hypersexualization and exploitation of the young actresses themselves in order to make her point.

The NCSE went further, arguing that there is merit to the Twitter movement, “#CancelNetflix.” Nealon suggested that to absolve itself, the streaming service “could and should insist that the particularly sexually-exploitative scenes are cut from the film, or stop hosting this film at all.” She’s right, of course. So why hasn’t Netflix done this?


How Trump Can Win


Sean Trende thinks through what will have to have happened for Trump to be reelected.


Eleven Foster-Care, Adoption, Child-Welfare Things That Caught My Eye Today (September 18, 2020)


1. More children wed, risk trafficking in Rohingya camps in pandemic

2. U.S. Marshals: 262 Arrested, 5 Missing Children Found in Oklahoma City

3. Okay, wait. To start with: Forming a relationship? How about, statutory rape? This is evil. Bot what happened, and the fact that we apparently can’t see how wrong it is.

Man, 35, facing sex charges including HIV exposure after forming relationship with 12-year-old on Snapchat 


5. You Can Adopt campaign launches in London

6. Adoptions out of foster care on the rise in Indiana

7. Texas: Little girl is now safe in foster care after mother lost custody, did not hand her over, DFPS says

8. West Virginia: Rotary learns about foster care


10. Surreal similarities: Connecticut woman adopted from China discovers a sister



A Contrarian Take on the Department of Education’s Princeton Investigation

Princeton University’s Woodrow Wilson School of Public and International Affairs in Princeton, N.J., November 20, 2015 (Dominick Reuter/Reuters)

On Thursday, it was reported that the Department of Education is launching an investigation into race-based discrimination at Princeton University. The investigation comes after Princeton president Christopher Eisgruber did his best Harvey Dent impression — “Take the racist into custody, I am the racist” — on September 2 in a letter addressed to the Princeton community. In the letter, Eisgruber makes claims that “racism and the damage it does to people of color nevertheless persist at Princeton” and, even more damning, that “racist assumptions from the past also remain embedded in structures of the University itself.”

In a letter of its own, this one addressed to President Eisgruber, the Department of Education points out that these claims stand in contravention with Princeton’s past declarations that it has been complying with Title VI of the 1964 Civil Rights Act, which states that federally funded institutions and programs may not discriminate “on the ground of race, color, or national origin.” The letter goes on to ask for Princeton’s cooperation in its investigation and to warn that, based on the results of that investigation, Secretary Betsy DeVos may take “action to recover funds” and initiate a “fine proceeding.”

The letter was met with enthusiastic acclaim on the right and outrage on the left. I find myself somewhere between joyful and scandalized over Princeton’s new headache.

If there’s one thing that’s clear, it’s that this is a mess entirely of Eisgruber’s making. No one forced Eisgruber to declare Princeton University — one of the country’s most progressive institutions — a place where pervasive systemic racism does damage to minorities with the misfortune of being there. The self-flagellation is worthy of criticism. Moreover, the Department of Education has a responsibility to ensure that its funds are not being sent to institutions in violation of Title VI. It also has an interest — if a federally funded institution is not guilty of discrimination — in that institution not declaring that it is.

Nevertheless, I have reservations. I do not for one second believe that DeVos thinks that Princeton is in fact discriminating against students, faculty, and staff on the basis of race. The only evidence of “racist assumptions” that Eisgruber cites in his letter is that “nine departments and programs organized around European languages and culture, but only a single, relatively small program in African studies.” It is doubtful that the Trump Department of Education considers this to be evidence of discrimination. And if it does, will it be conducting investigations of all schools with similar disparities in the size of their European and African studies programs? Also, to acknowledge that racism persists in some form at Princeton does not mean that the University itself is discriminating against people of color.

This investigation, then, is being pursued not because the Department of Education suspects that Princeton is guilty of racial discrimination, but to make a political point about the absurd and overly broad definition of racism peddled on the left and championed by elite academic institutions such as Princeton. It’s an important point, but there’s something about an arm of the federal government threatening to pull funding to make it — under the pretense of investigating racial discrimination that it doesn’t believe exists — that I find troubling both inherently and as a precedent.

There has been concern about federal overreach in some quarters of the conservative movement about the Trump administration’s 1776 Commission and promotion of a patriotic-education alternative to the 1619 Project. Those strike me as far more effective and less suspect measures than its investigation into Princeton’s supposed bigotry.


Ezekiel Emanuel Urges In-Person Voting


Apparently the goal of winning the election by mail-in ballots isn’t going as well for Democrats as they had hoped. How else to explain Biden health-care adviser, the bioethicist Ezekiel Emanuel, coming out and urging people to vote in person? From the CNN story:

Recently, Dr. Ezekiel Emanuel, who served as an adviser in the Obama administration, analyzed the relative risk of contracting coronavirus while voting and came to a simple conclusion.

“There’s a lot of conversation about voting, but we looked at the data. It seems most like shopping at the grocery store. And that has some risk but it’s pretty low risk,” Emanuel said in an interview.

Emanuel said that conclusion is based on a better understanding of how the virus spreads, the widespread availability and use of face masks and other precautions, as well as evidence suggesting that voting, like grocery shopping, has not led to any widespread outbreaks since the beginning of the pandemic.

“There are ways and reasons to vote in person,” Emanuel said. “People should not fear for their lives by going out and voting. It’s a hell of a lot safer than going to a restaurant.”

How interesting. It is worth remembering that Emanuel was very recently the lead signatory of an open letter signed by “experts,” last updated September 1, calling for a second complete nationwide shutdown. From the letter:

Non-essential businesses should be closed. Restaurant service should be limited to take-out. People should stay home, going out only to get food and medicine or to exercise and get fresh air. Masks should be mandatory in all situations, indoors and outdoors, where we interact with others.

“You should bar non-essential interstate travel. . . . If you don’t take these actions, the consequences will be measured in widespread suffering and death.”

So, less than a month ago, Emanuel said people should stay home, but now says people can safely vote?

Such a radical shift doesn’t make sense unless the driving force behind both calls is more about politics than science.

White House

Trump’s Foolhardy Resistance to Masks

President Donald Trump wears a mask due to the coronavirus disease, Clyde, Ohio, August 6, 2020. (Joshua Roberts/Reuters)

Jim posted the other day on the differing messages, or at least tone, on masks from President Trump and the head of the CDC, Robert Redfield. Trump subsequently took public swipes at Redfield. 

Trump never quite comes out and says he hates masks, and his advisers downplay his opposition, but he’s obviously not an enthusiast. This is foolhardy for two reasons:

1) Masks are the best tool we have at the moment, and they are certainly preferable to lockdowns. Maybe we will eventually learn that masks aren’t as effective as we currently think, but the latest evidence on how the virus spreads — I found this piece really helpful — supports their importance. The president shouldn’t be out there fostering doubts about them.

2) One reason that Trump’s numbers are so poor on his handling of the coronavirus is the understandable sense that he has downplayed it throughout and has too cavalierly dismissed the advice of experts. Public spats with his CDC director play into these real vulnerabilities that could help make him a one-term president.

Politics & Policy

The Irreligious Vote


Daniel Cox (an AEI colleague of mine) and Amelia Thomson-DeVeaux are asking why Democrats aren’t doing more to court it.

More than one-third of the people who voted for Clinton in 2016 were religiously unaffiliated, making them just as electorally important for Democrats as white evangelical Protestants are for Republicans. Yet despite constantly hearing about the importance of white evangelical voters in an election cycle, Democratic politicians have been slow to embrace the growing number of nonreligious people who vote for them. Why?

One possibility that comes to my mind: Democrats are courting a large segment of these voters through their support for social liberalism and wokeness, which have come for that segment to function as a partial substitute for religion.

Politics & Policy

Michael Gerson on Pro-Lifers and the Presidential Election


The former George W. Bush speechwriter, now at the Washington Post, explains why he is voting for Joe Biden even while disagreeing with him about abortion.

I expect to make a fuller statement of my own views about how pro-lifers should think about the election in due course. Here, at the risk of being unfair to Gerson, who couldn’t reasonably be expected to address all of these issues in the space of a column, I’ll note four holes I find in his argument.

First: He assumes that making the case that a pro-lifer should not vote for President Trump amounts to making the case that he should vote for Biden. There are other options: third-party candidates, write-ins, abstention. Gerson may have good reasons for rejecting those options, but many points of his argument — the duty of voters to avoid “complicity in grave wrongs,” for example, which he invokes only in making the case against Trump — requires him at least to consider them.

Second: Gerson proceeds as though he need only establish that pro-lifers should not be single-issue voters to clinch his case. “If other matters are allowed to matter, the floodgates open,” he writes. There is, of course, an alternative to treating abortion as the only issue to determine one’s vote and ignoring it altogether, and that is giving it a great deal of weight. I imagine Gerson would agree with that point. But he doesn’t engage in that weighing. Having established that voters may take account of other considerations, he just moves on to listing ones that militate against Trump and then shares his conclusion that he’s going to vote for Biden.

Third: Gerson does not mention Biden’s support for taxpayer funding of abortion, or his party’s increased commitment to it. He notes that abortion rates dropped under President Obama. But we didn’t have Medicaid funding of abortions under Obama, and the Democratic Party of that era was much less united behind that goal. We have good reason to think that Medicaid funding would increase the death toll from abortion.

Fourth: A dimension of the injustice of abortion is entirely neglected in Gerson’s analysis. That injustice includes both the unjustified killing of unborn children and the law’s treatment of unborn children as non-persons who do not deserve protection. The pro-life slogan that unborn children should be “protected in law and welcomed in life” captures both of these dimensions. Gerson ignores one of them when he says that even if Trump’s reelection led to “a significant retreat from Roe,” Americans would mostly live under the same abortion laws as now. Maybe so. But a significant reduction in the abortion rate would be possible, and ought to matter even on Gerson’s own argument. And it would no longer be the official policy of the federal government that our Constitution makes unborn children non-persons with no rights, which ought to matter too.

Gerson says that his voting intention is “uncomfortable but inevitable.” I think it is less inevitable than he believes, and that he has made it more comfortable than it ought to be.

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Who you gonna believe, me or your own eyes? Chico Marx in Duck Soup (1933) The long-rising blue tide that has colored American politics and values may have crested, but it could still have enough momentum to make it through the election year. Even if Trump is somehow reelected, the wielders of power and ... Read More

Replacing Justice Ginsburg: Politics, Not Precedent

Justice Ruth Bader Ginsburg lived an extraordinary American life and leaves it with glowing admiration from even those who disagreed with her. That’s all any of us can hope for. It is an unseemly but by now commonplace sign of our times that, even though she passed away just as Rosh Hashanah had begun, the ... Read More

Replacing Justice Ginsburg: Politics, Not Precedent

Justice Ruth Bader Ginsburg lived an extraordinary American life and leaves it with glowing admiration from even those who disagreed with her. That’s all any of us can hope for. It is an unseemly but by now commonplace sign of our times that, even though she passed away just as Rosh Hashanah had begun, the ... Read More