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Analysis and perspective about what's happening in the political realm.

No One Knows If a President Can Be Indicted

Can the president be indicted while in office? Rudolph Giuliani, at this writing one of President Trump’s lawyers, apparently wants the public to believe that there is a clear answer to that question—the one that by coincidence favors his client.

The one thing I am sure of is that there’s no clear answer.

To begin with, no one suggests that a president can never be indicted for crimes committed in office or out of it. Of course he can. The question is whether a president can be indicted while in office.

There’s no caselaw, but we have four interesting government memos dating back half a century. I reviewed them, and asked six prominent legal scholars how we should look for an answer.

Start with the memos—one issued by the Justice Department’s Office of Legal Counsel (OLC) during the waning days of the Nixon presidency; a contemporaneous memo by the late Robert Bork, then solicitor general, advising a district court that a vice president could be indicted; a 2000 opinion by the OLC reaffirming the 1973 opinion; and, finally, a 1998 opinion by a lawyer in Kenneth Starr’s Office of the Independent Counsel investigating...

Republican Leaders Confront an Immigration Revolt on Two Sides

deepening rupture within the House Republican ranks over immigration policy has claimed another casualty: the farm bill, a far-reaching priority of Speaker Paul Ryan that would impose work requirements on recipients of food stamps.

Conservatives in the House Freedom Caucus joined in an unlikely alliance with Republican moderates and the entire Democratic caucus on Friday to sink the legislation, which covers everything from agricultural subsidies to school lunches to the Supplemental Nutrition Assistance Program, commonly known as food stamps. Despite a flurry of last-minute negotiations with GOP leaders, members of the Freedom Caucus made good on their threat to block a bill they supported on the merits as part of an unrelated fight over immigration.

To head off an attempt by Republican moderates to force votes on bipartisan immigration bills—a formal petition drive that’s only a handful of GOP signatures away from succeeding—the conservatives had demanded a firm commitment from the leadership for a vote on their preferred immigration proposal. But when a deal didn’t materialize on Thursday night, they voted down the farm bill.

“This is all the more disappointing because we offered the vote these members were looking for, but they still chose...

Apollo 8 Helped America Survive 1968—a Year Remarkably Similar to 2018

Few years were more terrible to America than 1968.

Assassins killed Martin Luther King, Jr. and Robert Kennedy. Protests by anti-war demonstrators, students, and counter-culture activists resulted in violence at the Democratic National Convention in Chicago, on college campuses, and in the streets. The Soviet Union stood as our great existential enemy. Trust in government cratered as much of the public came to believe that politicians weren’t telling the truth about our prospects in Vietnam.

At the Summer Olympics in Mexico City, two black American sprinters, Tommie Smith and John Carlos, protested against the racism they saw in their own country. Outside the Miss America pageant, at least a hundred women railed against the event, which they deemed exploitative. Young people called hippies threatened to overturn the social order.

As the year unfolded, America only grew more bitterly divided. To many, it felt like the country was coming apart at the seams.

How very familiar it all looks fifty years later.

In 2018, public violence—school shootings, bombings, and acts of terror—seem a weekly occurrence. The Soviet Union has again become a primary threat. Trust in government can be summed up by a single number—18—the percentage...

Why Do Trump’s Defenders Assume He’s Guilty?

The presumption of innocence is essential to the American legal system. Sometimes prosecutors and the press need to be reminded of this. It’s not as often that the allies of a defendant, or even a prospective defendant, forget.

Yet allies of President Trump have made some peculiar comments over the last few days, as Jonathan ChaitJosh Barro, and Orin Kerr note. Anthony Scaramucci says Michael Cohen would not flip on Trump because he is “a very loyal person.” Alan Dershowitz, enjoying a strange encore act as Trump’s most prominent legal defender, told Politico, “That’s what they’ll threaten him with: life imprisonment. They’re going to threaten him with a long prison term and try to turn him into a canary that sings.”

Jay Goldberg, who represented Trump in the 1990s and 2000s, told Trump that he needs to be concerned that Cohen will not protect him. “You have to be alert,” Goldberg said. “I don’t care what Michael says.” (The president’s armada of former lawyers, and Trump’s reluctance to ever fully banish anyone, mean that sort-of-former lawyers keep popping up left and right, with advice solicited or not.)

Even Cohen, in his...

The Tenacity of Trump

You would think, based on the surprise that has greeted President Trump’s recent decisions to walk to the brink of a trade war with China and dispatch the National Guard to the Southern border, that he had not talked about securing the border and punishing Chinese trade practices for years.

These two moves point to a curious paradox about Trump. He is a historically dishonest president, prone to lying about matters large and small at a prodigious rate. Yet Trump has consistently tried to follow through on the biggest promises that were central to his campaign. He has not always been effective, and he has seldom been artful, but it is difficult to question his tenacity.

Take border security and immigration. The cries to “build the wall” were the consistent climax of Trump rallies during the 2016 campaign. Trump promised to end the flow of unauthorized immigrants, kick them out of the country, and seal the border with Mexico. He has consistently tried to do just that.

First came his travel ban, issued, to the surprise of many officials tasked with enforcing it, at the end of Trump’s first week in office. The details and approach took the...