Two Harvard Law professors walk into a bar and write a stoopid article comparing The Donald with FDR and the New York Times publishes it. But why?
Yeah, that’s the gist of my next “Yo, New York Times! How stoopid can you get?” entry, a contribution of two Harvard Law plug-uglies, Jack Goldsmith and Samuel Moyn, What a Comparison With Roosevelt Reveals About Trump, a supposed “Guest Essay” from an “interesting” pairing of two Cambridge jerks from opposing ends of the political spectrum. Jack Goldsmith is a singularly “flexible”—flexible verging on liquid—anti Anti-Trumper, whose morally invertebrate musings on current affairs often have the unsettling appearance of an unusually oleaginous octopus oozing through a keyhole. His partner in intellectual hypocrisy, Samuel Moyn, is a similarly unattractive intellectual cephalopod, a dealer in postmodern, left-wing neo-Nietzschean drivel. Goldsmith’s goal seems to be the same as that of so many anti Anti-Trumpers, to “normalize” Trump, while Moyn’s participation leaves me baffled. Perhaps he lost at cribbage? And if so, what’s the New York Times’s excuse for publishing the piece? Did they lose at cribbage too?
Goldsmith and Moyn, to get back to them, have concocted an absurd “essay” that falls into two oddly disparate parts, both “arguing” that Trump is, when you stop to think about it, not really that big a deal, though they do so in strikingly different ways. Part One argues that, in effect, we’ve seen this movie before. Despite all the ululations from the TDS (Trump Derangement Syndrome) crowd, the Reign of Trump is not something wildly out of step with the American political tradition, but rather a repeat of the Reign of FDR. So if you liked Franklin, you gotta like Donnie too!
Part Two of Sam and Jackie’s opus goes in the opposite direction: Don’t worry about Donnie, because he’s not like FDR! See, Roosevelt was a “transformational” president, because he had a solid majority of the country behind him and solid majorities in Congress as well, for all 12 years of his time in office. Trump, on the other hand, has a skinny plurality nationwide, and slim, uncertain majorities in Congress at best. So whatever evil he might do will vanish as soon as he leaves office. So don’t worry, be happy!
Of course, they couldn’t be more wrong. It’s true that Roosevelt vastly expanded the power of the presidency, and clearly had an appetite to do more, but otherwise the “proof” that the two presidents were in fact peas in a pod is achieved by the simple tactic of ignoring the massive differences in the records of two men while grotesquely overemphasizing the similarities. For example, did Roosevelt summon a mob to pressure Congress into allowing him to illegally seize power and rule as an outright dictator? Did he pardon more than 1,500 outright criminals who swarmed and pillaged the U. S. Capitol in a scene of seditious violence utterly without parallel in our history? Did Roosevelt subject anyone who defied his will to an endless stream of vicious and unscrupulous slander and libel? Did he enrich himself and his family while in office to the tune of literally billions of dollars?1
Well, no, he didn’t. But somehow Sam n’ Jack forget about all this while “proving” that Donnie I is really nothing more than Franklin II. Here’s how the two get the ball rolling:
A little more than a year into President Trump’s second term, his executive power grabs have been arrestingly similar to ones pioneered by an iconic predecessor liberals revere: Franklin D. Roosevelt.
Roosevelt, they tell us, was
the first president to systematically weaponize the government to help achieve his transformative goals. He set loose the I.R.S. on perceived enemies like Senator Huey Long, the former Treasury secretary Andrew Mellon and the publisher William Randolph Hearst. Roosevelt’s Federal Communications Commission pressured broadcasters to avoid criticism of presidential policies. He authorized the F.B.I. director J. Edgar Hoover to surveil and build dossiers on political opponents.
The first president to systematically weaponize the government? Uh, have these two great legal scholars never heard of the Alien and Sedition Acts passed during the presidency of John Adams? Five men were convicted and imprisoned under the act for nothing more than trashing “His Rotundity”, as Adams was often referred to, including a sitting congressman. In addition, a drunk (allegedly) was fined for shouting out, after hearing a gun shot during a parade in Adams’ honor, “I hope it hit Adams in the ass.”
There was, as well, the “famous” record of Abraham Lincoln’s decision to suspend habeas corpus during the Civil War, allowing the military to detain thousands of U. S. citizens, chiefly in border states, including a variety of newspaper editors and political figures. In the most spectacular case, in 1861 Maryland state legislators were arrested to prevent them from voting for secession. (This occurred after the firing on Fort Sumter.)
And what about Woodrow Wilson and his administration’s sorry record of harassing and jailing critics of U.S. participation of World War I? You could write a book about it, and Adam Hochschild did, American Midnight: The Great War, a Violent Peace, and Democracy’s Forgotten Crisis, describing the massive violations of civil liberties that took place during that period, violations that ultimately led to the “rediscovery”/invention of the First Amendment by the federal courts, which up until that time had played little role in constitutional jurisprudence,
Furthermore, to get back to Roosevelt, his record of IRS harassment resulted in a single trial, of Philadelphia publisher Mose Annenberg, which resulted in a conviction—because Annenberg pleaded guilty. (So maybe he was?) Contrast this with Trump’s absurd and disgusting record of constantly and publicly demanding the arrest and conviction of current and past high government officials over absurd charges, sometimes petty and sometimes wildly overdrawn, or his vicious bullying of colleges and universities and leading law firms, extracting over $1 billion in “protection money” that will be used for his own political purposes. There is absolutely nothing in American history comparable to it, and for Goldsmith and Moyn to pretend otherwise is obscene.
Okay, that’s enough for that obscenity. Let’s go on to another one, the authors’ claim that Roosevelt ruled via an “iron-fisted control of the bureaucracy”. Again, really? Again, Sam n’ Jack are correct in their argument that Roosevelt was an enthusiastic advocate of what is now known as the “unitary executive”, that the president is the “boss” of the entire executive branch, and that every executive branch employee, including the principals of the various “independent agencies” that Congress has established over the years, serve at his pleasure. In 1933, he tried to fire a member of the Federal Trade Commission but was overruled by the Supreme Court. But, say the authors,
Unbowed, Roosevelt commissioned a panel of dignitaries [known as the “Brownlow Committee”] who in 1937 recommended that presidential power be enhanced to safeguard citizens “from narrow-minded and dictatorial bureaucratic interference” by independent agencies and the “permanent civil service.” He endorsed the plan and in a message to Congress stated that the constitutional framers established the presidency “as a single, strong chief executive office in which was vested the entire executive power of the national government.”
Well, yes, he did “commission a panel”—how iron fisted is that?—and then iron fistedly asked Congress to approve it, but Congress ended up rejecting 35 of the panel’s 37 recommendations in 1939. So where was FDR’s “iron fist” prior to that date, and just how “iron fisted” was it afterwards?
After concluding their litany of disingenuous comparisons, Sam n’ Jack work to “normalize” Trump in a different manner. Yeah, maybe he’s done some bad things, but despite all the hoopla The Donald is little more than dust in the wind.
To take the true measure of this presidency so far, therefore, we must acknowledge the increasing self-aggrandizement of recent executives, none of whom have been able to consolidate a paradigm shift in American governance, ruling as they all have amid democratic disagreement and legislative gridlock. Roosevelt, by contrast, went from strength to strength, with greater electoral popularity in the 1934 midterm elections and his re-election in 1936.
From this perspective, Mr. Trump — precisely by attempting to do so much with the presidency’s tools, honing their sharpest edges yet further — is showing that no president can reconstruct the political order with brittle support that is the hallmark of presidents in our time.
This is, sadly, called missing the boat entirely. Trump has been a transformational president like no other, in many ways, all of them ugly. He has completed the moral ruin of the Republican Party, something I’ve screamed about a lot, perhaps most dramatically here, and he has deeply corrupted the federal judiciary, filling both the district and appellate courts with judges/Trumpian ditto-heads who feel their job is to do whatever they feel is “right”—that is to say, whatever Donnie wants. In a recent Supreme Court decision, Murthy v. Missouri, overturning lower court rulings that the Biden Administration’s pressure on social media platforms violated the First Amendment, which I discussed here, Justice Amy Comey Barrett remarked that “The Fifth Circuit [Court of Appeals] relied on the District Court’s factual findings, many of which unfortunately appear to be clearly erroneous,” which is a Supreme Court justice’s way of saying “the district court judge was a lying sack of shit, and the appellate court judges who swallowed his shit were even worse.”
Of, course, Amy, and the rest of the “Shameless Six” conservatives on the Supreme Court had already beshitted themselves beyond repair (yes, this is getting pretty gross) in voting “right” (that is to say, wrong) on the most important, and worst, Supreme Court decision in American history, Trump v. United States, in which Amy not only voted with the other five forces of Satan but then tried to explain away her vote with a ponderous flurry of legalistic hand-waving, scarcely disguising the fact that she actually disagreed with Chief Justice John Roberts’ majority opinion on several significant, indeed vital, points, despite labeling her own opinion as “concurring in part” rather than “concurring in part and dissenting in part”, and I think it’s worth examining Amy’s hypocrisy on this point in some detail, to demonstrate just how far even the most “conscientious” of Trumpians can fall when the interests of the Maximum Leader are directly involved.
“Properly conceived, the President’s constitutional protection from prosecution is narrow,” Amy states in her second paragraph, her verbal artfulness provoking innocent readers (like myself) into believing that she declared Roberts’ decision to be “narrow”. But that would only be true if she also stated that Roberts’ opinion did “properly conceive” the President’s constitutional protection. And nowhere does she say that, nor does she anywhere notice that Roberts’ opinion was the opposite of “narrow”, to the extent that virtually every commentator was stunned by the sweep rather than the narrowness of the majority’s opinion,3 awarding presidents immunity from prosecution for all acts involving exercises of the presidency’s “core powers”, along with some not so core powers as well, said powers to be “defined” as pretty much whatever Honest John felt like pulling out of his ass when the need arose. So, yeah, the president’s constitutional protection from prosecution should be “narrow”, but Roberts’ opinion, which Barrett signed off on for the most part, was the complete opposite. If you take the time to parse and pursue the logical implications of Amy’s elegantly disingenuous prose, you discover that what she is saying is that Roberts’ opinion is most improperly conceived!
When is a president not immune from prosecution? Glad you asked. “For example,” Amy says, “the indictment [brought by Justice Department Special Counsel Jack Smith during the Biden Administration] alleges that the President ‘asked the Arizona House Speaker to call the legislature into session to hold a hearing’ about election fraud claims. App. 193. The President has no authority over state legislatures or their leadership, so it is hard to see how prosecuting him for crimes committed when dealing with the Arizona House Speaker would unconstitutionally intrude on executive power.” In other words, the portion of the indictment of then Mr. Trump pertaining to alleged crimes “committed when dealing with the Arizona House Speaker” should have, in Justice Barrett’s opinion, been allowed to stand, and Trump should have faced trial on these matters. Instead, Roberts majority opinion ordered that these issues be remanded to the District Court “to determine in the first instance—with the benefit of briefing we lack—whether Trump’s conduct in this area qualifies as official or unofficial,” knowing, of course, that the district court’s decision on whether Trump could be indicted on his “conduct in this area”, even if favorable for the prosecution, and even if issued before the November presidential election (exceedingly unlikely, since the Court’s decision here was handed down on July 1, 2024), could and would be immediately appealed. (And the idea of bringing a prosecution so close to election day is pretty dubious in the first place.)
So why didn’t Amy say she dissented from the remand instead if simply implying it?4 Why didn’t she say that this portion of the indictment was valid and that prosecution on Trump’s conduct regarding the Arizona House speaker should go forward immediately? Meaning that Trump should have been, you know, placed immediately under arrest! Could it have been, I don’t know, sheer, unadulterated cowardice?
It’s my opinion, explained in the link I gave for Trump v. United States, that in that case, along with an earlier one, Trump v. Anderson,5 the Court’s obeisance to Trump’s will destroyed our Constitution. How we will get a new one remains to be seen, but we are going to have to do it. Because we have no choice. And I call that pretty goddamn “transformational”.
If only that were all. But it isn’t. Trump has also “transformed” the standing of the United States vis-à-vis the rest of the world. We are now understood, and understood correctly, as a gangster state. Trump lies constantly, endlessly, makes international policy on the basis of pique, threatens anyone he perceives as weaker than himself without the slightest hesitation, displays no respect for anyone unless he fears them. He has effectively done to Venezuela what he endlessly argued what the Bush Administration should have done to Iraq—seize their oil. The Venezuelan oil industry, which has claim of some of the largest reserves on the planet, is becoming an extension, not of the United States—that would be bad enough—but Trump, Inc. Donald Trump is converting the United States of America, once supposedly the “leader of the Free World”, into a Trump family asset. And this is the final transformation. If only Jack Goldsmith and Sam Moyn—and several million others—had the courage to see it.
Afterwords
I have remarked on Jack’s strange career several times. He first became famous during the presidency of George W. Bush, opposing, though with great caution, the “water boarding ain’t torture” crowd, but since then he seems to have shifted violently to the right, arguing, among other things, that putting Trump on trial for all the crimes he had committed would somehow be a bad idea. My only guess is that, somehow, sometime during the Obama administration he decided that the Democrats needed to be stopped at all costs—“by any means necessary,” to coin a phrase.
I find Moyn even harder to read. His recent book, Liberalism Against Itself, gives a typically postmodernist caricature/critique of what he calls “Cold War Liberalism”—that is to say, “liberalism”—as a corrupt exercise in the hypocrisy of capitalism, seeking not to free the workers but rather teach them to love their chains. The trouble with postmodernism is that after it has “unmasked” every form of social thought as nothing more than an amoral will to power, it is left with the awkward conclusion that there is nothing left except power, and thus, “all power to the powerful”? What other standard is there? So why not embrace Trump? He certainly is “powerful”, after all!
1. Bloomberg’s Olga Karif remarks, with what strikes me as deliberate understatement, on the Trump family’s excellent crypto adventure, to wit: “What is unfolding has no precedent in American financial life. A sitting president’s family holds financial stakes in a live token project — one setting governance rules, directing treasury sales, collecting proceeds — while the people who signed up find themselves with limited options to exit.” And who could have seen this coming, I ask you. Who?
2. Roosvelt’s worst offense against civil liberties, of course, was the “internment” of some 120,000 Japanese Americans during World War II, some 80,000 of them American citizens, an outrageous and entirely unnecessary abuse of government power and human rights. The historical record shows that FDR was deeply prejudiced towards Asians, but, at the same time, he insisted that China be given a seat on the United Nations Security Council, placing it on a par with the USA, the USSR, France, and Great Britain (much to Churchill’s disgust.)
3. The only ones who weren’t stunned were the ones who, surprisingly enough, didn’t want Trump to be denied the opportunity to seek reelection.
4. The irony gets particularly rich here, because the portion of Roberts’ opinion with which Amy says she does not concur—labeled “Section III-C” in Roberts’ opinion, relating to the kinds of evidence permissible to be used against a president who has been properly indicted—does not relate to Trump’s “seditious” (my word, obviously) contacts with the Arizona House speaker. We’ll just tuck that part under the rug so no one will notice. (In fact, Amy says in her text that she agrees with Justice Sotomayor’s discussion of Section III-C. So why doesn’t she list herself as “concurring in part” with Sotomayor’s dissent?)
5. Trump v. Anderson rewrote the 14th Amendment to the Constitution to spare the Supreme Court its constitutional duty to find President Trump guilty of committing sedition and thus disqualified from serving as president, To her credit, Amy dissented from this one, though not very gracefully.
