ACTUALLY IT'S OKAY TO NOTICE WHEN THINGS ARE ILLEGAL

(a manifesto)

11 days ago Neil Gorsuch, Samuel Alito, Clarence Thomas, and Brett Kavanaugh did their part to stop the sentencing of Donald Trump for his conviction of 34 felony counts in a Manhattan courtroom. Trump’s filing was a total Hail Mary; there was absolutely no reason for the case to be before the Supreme Court, and even less reason than that for the court to get involved in a dinky little state case in which the sentencing judge had already announced that he would have no choice but to unconditionally discharge the defendant from any consequence.

This was, fortunately, a minority vote; the Chief Justice joined the court’s women in denying the emergency stay and Trump’s sentencing went forward the next day via a 29-minute videoconference. The defendant spent nine of those minutes whining about how unfairly he had been treated in a typically aimless monologue which told us more than anything that he truly did not understand the most basic elements of the statute under which the jury had unanimously convicted him.

This was a deeply and scarily lawless favor for 4/9th of 1/3 of the federal government to try to do for the incoming head of the executive branch. Every one of these ghouls deserves to have that vote in the first paragraphs of their obituaries right along with Dobbs.

I have been thinking about how open democracies become managed democracies, how managed democracies become oligarchies, how oligarchies become anocracies, and how anocracies become straight-up dictatorships. It’s a long way from the top, but it’s only one way and runs down a steep hill.

And there are few people better qualified to drive that bus to autocracy than Neil Gorsuch. I mean, just look at this winsome silver fox. He’s just asking questions, you know?

Gorsuch recently co-wrote a book about how there are just too many damn laws, and it’s pretty much what you’d expect. I am willing to give him the benefit of the doubt that he shares my concerns about the Kafka-worthy absurdities of federal criminal law, and that’s all fine so far as that goes. But his victory lap on the death of Chevron deference—the book was released only a few weeks after he achieved his career goal of ending the federal judiciary’s required deference to federal administrative agencies—is just too much. By his telling, he ushered in a completely new era of deregulation for the little guy: the magician who had to execute a complex agreement with the federal government to keep his rabbit, the museum that was bullied over keeping Hemingway’s cats on the premises. But he knows that we know that he knows that we know the truth; he is a FedSoc company man through-and-through, and even if he isn’t enjoying the same jet-setting perks as Clarence Thomas he is owned and operated by the same people.

Gorsuch looks like a TV judge, which is why he was cast for the part by our TV president. (And it’s not even subtle: Trump often uses the phrase “central casting” to describe his ideal nominees.) Gorsuch is exactly the avatar of destruction that the MAGA movement requires to get this done properly. He has a pleasing voice, a square jaw, and the irritating by-your-own-logic high-school-debate-champion argument style which appeals to the kind of people who voluntarily choose to have Ben Shapiro explain the law to them.

He is also so far as I can tell an absolutely fucking insufferable person, which helps.

—

The road to autocracy can be smooth and relatively painless (Orban’s Hungary), or it can be rough and bloody (Mao’s China). There are any number of variables within and without a would-be autocrat’s control, but the one thing which is most likely to make the difference in the early days of a revolution is how you deploy your lawyers and how much you can count on the judges they will be appearing in front of.

Trump attorneys John Eastman and Kenneth Cheseboro collectively drafted more than a dozen pages of documents which have been fairly called “coup memos.” Had they been able to pull off the most ambitious version of these plans, there is a non-zero chance that Vice President Mike Pence would have been able to unilaterally hand himself and his running mate a second term in a way which Eastman continues to insist as of now would have been at least credibly legal.

We would have experienced some chaotic but ultimately bloodless days in DC before Trump took office and Joe Biden was exiled back to Delaware (or worse), but it could have worked.

It was a stupid plan, but stupid plans work all the time.

All of that is exactly why Eastman is one of the few people in the United States who truly deserves to be in federal prison for the rest of his life, and the fact that hardly anyone in this country even knows his name four years later is yet another of so many indictments of our corporate media we could bring in this uniquely terrifying American moment.

But we don’t have that kind of time.

—

There has been quite a lot of Discourse since November amongst the online left about the actual value of pointing out that something that the government has done is illegal, unconstitutional, or otherwise not allowed—or, worse yet, daring to be so naive as to say out loud that “he can’t do that!”

There were a lot of variations in the second week of November out there on the themes of don’t trust anyone who says that the system will stop Trump and/or no opinion which includes “that would never actually happen because it’s illegal’ is worth listening to. I get it, and so far as that goes I’m with you. It is beyond naive to state with any kind of authority that something can’t happen as of January 20, 2025 simply because that thing happens to be flatly illegal on its face.

But I’m also concerned that there is a mission creep here which is getting people yelled at for saying that illegal things shouldn’t happen. But saying that is kind of both of my jobs, and I’m going to keep doing it.

Let me show you what I mean with an easy little warmup:

Donald Trump has only been President for a few hours as of the time that I am writing this, and it is expected that by the end of the day he will sign an executive order purporting to end federal recognition of birthright citizenship. From so much as we know so far, the order will direct the Department of State to stop issuing passports and the Social Security Administration to stop issuing SSNs to children whose parents can’t prove their lawful immigration status.

Well, hold on now folks!

That’s illegal! The President is ordering federal agencies to ignore the plain text of the 14th Amendment! No court should ever let him get away with that, and we should be prepared for widespread direct action across the country if they do.

See how easy that was to say? Hardly took me any time at all to type that.

—

Some Opening Arguments listeners recently took issue with Harvard Law professor Lawrence Lessig for sharing with us what I thought was a fairly convincing originalist argument against Super PACs. Lessig told us that he believed that he had gone a long way to convincing avowed originalist Antonin Scalia of the merits of this argument over lunch shortly before his death, and that he believed that the rest of the Supreme Court’s current sitting originalists should be persuadable if they were to engage his analysis honestly.

The response was predictable enough: how could Lessig be so naive as to assume that Samuel Alito could be trusted for an honest originalist analysis? How could he not understand that that originalism is just an adze of convenience used to mold American history to hard-right legal outcomes?

I think the answer to these questions is that Lessig certainly does understand that—he said as much directly in the same conversation—but also that he believes that we really have no choice but to approach the final arbiters of American constitutional law as if they are operating in good faith no matter how demonstrably questionable that assumption is. I had the same reservations as some of our listeners, but I also get it: if you’re going to try to convince a court to go against its own precedent your best shot is going to be speaking their language. And the alternative to trying to get the Supreme Court to overturn Citizens United at this point is not doing that, so I am all the way behind anyone who is willing to make the best effort that there is to make.

—

The fatalism of lol the rule of law is dead and Trump/SCOTUS are just going to do whatever they’re going to do so what’s the point anyway is not only easy, it’s fun. It’s fun to expect the worst possible thing, to spin out complex fanfic about how that thing might happen, and to get mad at people who tell you that maybe we should do something now to stop it.

Well, fuck that entirely. I come here every night to work; you can grab an ax, man, or you can step aside.

Here’s what I mean when I say that something that the government has done, is proposing to do, and/or is in the process of doing is “illegal”:

I mean that it is against the law.

I mean that the thing that is being proposed, is in the process of happening, and/or has happened is at minimum not a thing that the law says should be allowed to happen, and more likely than not also a plain violation in flagrante of the letter and/or spirit of the law itself.

I think that this is an important thing to say out loud.

But I also think it’s important to say that there are things that I do not mean when I say “that’s illegal.”

This includes:

1. “He can’t do that!” Because clearly he has and he is and he will be

2. “Good judges will stop him” Although more than you may know already have in ways you never heard about, and more will

3. “The Founders never intended that” I’m not opposed to meeting—and, more often than not, defeating—originalists on their terms, but I see no need to voluntarily play that game

What I do mean it that it is against the letter and/or spirit of the law, and that is all.

So I am a little biased here, law-wise. Law is how I pay my mortgage. I spend my days advising clients on their best legal options, and my nights doing the work necessary to share with listeners of Opening Arguments what I think they need to know about the law.

In fact not to go all Marbury on you here, but as both a practitioner and public advocate it is very much my job to say what the law is. And I like both of my jobs, so I will acknowledge that bias.

Another problem is that very often when even experienced legal analysts say that something is “illegal” what they really mean is “I don’t like this” or “I believe that this is the wrong outcome.”

Which is—well it’s fine, really, because as something between a legal pragmatist and a legal realist¹ I believe that in the end that to some degree that’s all that most judges are doing anyway. The law matters, but it is also a joke that we all agree to tell together. (And of course “illegal” isn’t also always “unethical” or “immoral” or “bad,” but for most of us those things are more often than not at least implied.)

The word “illegal” is also often employed to say simply “this is objectively the wrong outcome," which I think is also fine. I have never spent a single second of my life looking into whatever dogshit theory that Republicans advanced to fight the Biden student debt relief programs, for example—and that is at least in part because it doesn’t touch on any part of the law which interests me, but primarily because I fundamentally believe that making education easier rather than harder to access is something that any responsible government should be doing by any reasonable means necessary.

We also all understand that when Trump inevitably sets up some kind of federal corporate loan forgiveness program which directly benefits Elon Musk and no one else, the same people will have nothing to say about it.

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Since it is the third Monday in January, I have to say this: It’s really as simple as Martin Luther King Jr’s definition of an unjust law in Letter From Birmingham Jail.

An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal.

(As it happens this definition encompasses pretty much the entire body of immigration law, but that’s another manifesto.)

So, in short:

(1) laws exist

(2) The President is not obeying them

(3) I think that’s bad and worth telling you about whenever I can

But I do also understand the inevitable ensuing frustration of okay, but so what? I am more concerned than ever with that question myself as of today, because I can already see that building knowledge without building power is guaranteed to accelerate the collective burnout which already seems to be in progress.

We are now a country in which one man has been told by our highest court² that he is truly and completely above the law. Trump has been given a potentially terrifying quantum of criminal immunity—and we know for sure that he sees his already-boundless Constitutional pardon power as a force multiplier for his already-boundless corruption, mostly because already has.

We can care about the law without trusting or even believing in the institutions which create, enforce, and interpret it. We can care about the law even knowing its shameful provenance in patriarchal white supremacy. We can care about the law because we will be so much worse off than we can presently imagine without it.

I think a lot about Russian lawyers. In Nothing is True and Everything is Possible, Peter Pomerantsov paints a surreal portrait of Putin’s Russia in which a lawyer’s main function is to know which judges to pay and how much to give them to guarantee the outcome of proceedings which everyone involves knows to be a show trial.

We are within sight of being that kind of country, well within this generation. There is no peaceful path back from that, and certainly no easy one.

But we’re not Russia, not yet.

US courts can sometimes feel that way, but there are still enough honest—and even incorruptible—people on the bench and in public service generally that real justice is still possible in most places. And even when and where it’s not, truth still is.

—

In one of the worst Supreme Court decisions in recent memory, Neil Gorsuch went on for pages about why he was finding that an appalling abortion ban which was designed to evade judicial review should in fact evade judicial review. It was judicial tee-ball, as so many of the Court’s FedSoc joints now are.

We knew that, and Gorsuch certainly knew that. But so did superstar dissenter Sonia Sotomayor, who thoroughly called Gorsuch out for weaponizing his feigned ignorance in this case to leave “all manner of constitutional rights more vulnerable than ever before, to the great detriment of our Constitution and our Republic.”

Sotomayor recently shared with a group of law students that things have been particularly difficult for her in the last couple of terms; she didn’t mention Dobbs, but she didn’t have to.

But, she said, “it’s not an option to fall into despair.”

Fucking right it’s not. If she can say that while feeling as powerless as anyone operating at the highest levels of government could possibly feel, we can say it too.

We have no real hope on the federal level for the next four years, but there is a wide world of possibility for direct action and mutual defense everywhere from the smallest towns to your state’s legislature to the streets of DC. That action will need to be targeted, it will need to be tailored, and it will need to be informed.

I’m not ready for what’s coming—and, be honest here, neither are you—but it’s here, and we’re here. And it’s on those of us who have the privilege and personal safety and (as necessary) the experiential qualification to do and say these things, because no one else will.

Despair is not an option.

1. I’m a practitioner, not a philosopher, and I have a lot more reading to do before I can commit to any one framework but I am generally in life a pragmatist over anything else and immigration law in particular demands that approach above all.

2. N.B. that I am not saying that he is above the law, because I don’t believe that and that’s not what Trump v. US actually said in the end. I’m just saying that he believes that, which is really just as dangerous.