The Great Immunization

 

It was July of 2024, and Socrates and I were watching a baseball game at my house. He owned no television, or much of anything being continuously unemployed, so I obliged him since he was particularly concerned with the outcome of this particular game.

During a commercial break some breaking news came on about a U.S. Supreme Court decision. The Court had ruled that Donald Trump was totally immune from prosecution for some of his official acts during his presidency, presumptively immune for others, but not for his unofficial actions. [1]

“I wonder what that could mean,” Socrates said.

“Beats the hell out of me,” I replied. “But it sounds like good news. Maybe they’ll stop with those stupid prosecutions he’s been putting up with.”

“What’s so stupid about them?”

Just then, the game came back on. “I don’t know,” I said. “The game is back. I thought you wanted to watch the game.”

”I do. But being a member of an advanced species I’m capable of thinking about two things at once,” Socrates said with a grin.

“Well, congratulations! I guess I’m a member of a backward species, because I can’t think about anything else with the announcers and the cheering blaring over the TV.”

“Turn the sound down,” he ordered.

“I thought you wanted to watch the game.”

“I don’t need to hear it.”

I pushed the mute button on the remote, and said, “You seriously want to talk about that Supreme Court case with the game on?”

“I seriously want to know why you think the prosecutions against Donald Trump are stupid.”

“Because they’re political. They’re just trying to get him in jail so he can’t run for President.”

“That’s interesting. How do you suppose they got the jury to go along with that in New York?”

“That case was really stupid. Who cares if he paid off a porn star?”

“I’m pretty sure that the charges were falsifying business records. [2] Or do you disagree?”

“So what? What’s the difference?”

“You don’t realize that can be a crime in New York?”

“Okay. Again, I say ‘so what?’”

“You don’t think Trump should be prosecuted for crimes he committed?”

“Who says he committed crimes?”

“Um, the jury?”

 

“Maybe the jury wasn’t given the right information.”

“You are aware that Trump had defense counsel?”

“Yes.”

“Didn’t they have the ability to present his side of the story?”

“I suppose.”

“And didn’t they participate in the selection of the jury?”

“Sure. But New York is a blue state. I’m sure the jurors came into it with their minds already made up against him.”

“What? Everyone in New York is a Democrat?”

“Most of them.”

“And it was, therefore, impossible for them to judge him fairly?”

“Doesn’t that make sense?”

Socrates closed his eyes, shook his head, then said, “The world you live in must be a terrible place with so many people willing to convict a man of a felony just because of politics. Why do you think that? Would you do that?”

I had to give that some thought. “No, I guess I wouldn’t. At least I would try not to.”

“And do you consider yourself a paragon of virtue, better than most people?”

“Of course I am,” I said laughing, then said, “No, I’m just kidding. I think I’m pretty average as far as that goes.”

“And don’t you think Trump’s attorneys had the skills to ferret out potential jurors for bias?”

“I guess so.”

“So, what you’re left with is that Trump was found guilty of thirty-four counts by a unanimous jury that his attorneys participated in selecting. Does that about sum it up?”

“Yes, you’re right,” I said with a sigh.

“And doesn’t that demonstrate that presidents, and candidates for president, are capable of committing crimes, even if they’re named Donald Trump?”

“Yes, but I hear that Joe Biden’s nose isn’t exactly clean either.”

“So you say. But if there’s evidence of that won’t Trump’s Justice Department, if he wins, have the ability to go after him?” (The presidential election hadn’t taken place at this time.)

“Sure it does. And I bet it will.”

“Time will tell. But whether or not Biden committed a crime doesn’t have any bearing on whether Trump should be answerable for his crimes, does it?”

I had to concede the point. “No, I suppose it doesn’t. But doesn’t the Supreme Court case make all this irrelevant? The president has immunity for crimes he may have committed.”

At this Socrates laughed out loud. “You are aware that the United States and the State of New York are different sovereignties?”

“Huh? What does that mean?”

“It means that even if Trump is immune from prosecution for federal crimes, it doesn’t follow that he has the same immunity for state crimes.”

“Okay, then.”

“And even if he had that immunity, didn’t the Supreme Court say that the immunity doesn’t cover unofficial acts?”

“You tell me.”

“Weren’t you listening to the breaking news?”

“Oh, yeah.”

“And how could Trump doctoring his business records be an official act of the president?”

“I suppose it couldn’t. But at least he won’t have to worry about the federal charges now.”

“Time will tell what the courts consider official acts of the President. But are you still convinced that the President should be immune from prosecution for his official actions?”

“Naturally. Think about it, Socrates. If a president could be prosecuted for his official acts, if the next president was from the other political party he could prosecute his predecessor every time. No one would want to be president if he was going to be prosecuted as soon as he left office.”

“Of course, it hasn’t happened until now, has it?” Socrates said with a smile.

“No, but I can see it becoming a trend.”

“But wouldn’t the previous president have to be chargeable with a crime in order for that to work? I mean, you can’t prosecute a former president for wearing a tan suit.”

“No, that’s true.”

“And the former president would be entitled to a jury trial, wouldn’t he? I mean, the president can’t just declare someone guilty of a crime.”

“No, that’s true.”

“And they’d have to get the prosecution through the grand jury first. That would require a lot of perjury if the former president didn’t do anything wrong.”

“I’ve heard it said that a prosecutor can get a grand jury to indict a ham sandwich.”

“Even if that’s true, what would be the point? What could a prosecutor say about a ham sandwich that would actually get it convicted?”

“Well, I don’t think a president should have to worry about whether his actions are going to get him prosecuted down the road. And now that I think about it, wasn’t there a previous case where the Supreme Court said that a president can’t be sued?” [3]

“There was. But isn’t that different than getting prosecuted?”

“Sure. Being prosecuted is worse than getting sued. So how can a president be prosecuted if he can’t even be sued?”

“A president makes all sorts of policy decisions while he’s in office, doesn’t he?”

“Yes.”

“And often those decisions will make some people better off, and others worse off. Am I right?”

“You’re right.”

“And sometimes his decisions will have bad effects that he doesn’t anticipate, right?”

“Right again.”

“So, in this case it seems that he would face the exact sort of issue after his term was over that you were worried about in criminal cases. Wouldn’t there be any number of people who would feel aggrieved by his decisions who would be ready to sue a president as soon as he was out of office?”

“Well, sure. And you can’t have a former president being civilly liable to everyone who feels aggrieved. Maybe now you see my point about him being prosecuted for any crimes he committed while in office.”

“But a president disappointing some people while in office is virtually inevitable, isn’t it?”

“Certainly.”

“Is it equally inevitable that a president will commit a crime while in office?”

I was surprised by that question and had to think for a moment before I answered, “No, I guess it isn’t.”

“So, it can’t be said that a president will inevitably be prosecuted once he leaves office, can it?”

“I guess not.”

“And a crime isn’t just a wrong done to one person, or even a few people, but is an offense against the whole community.”

“Yes, you’re right.”

“And doesn’t the Constitution contemplate that a president can be prosecuted for a crime after he leaves office?”

“What do you mean?”

“Well, doesn’t the Senate have the power to try all impeachments according to Section 3 of Article I of the Constitution?” [4]

“I don’t know the chapter and verse like you seem to, but that sounds right.”

“And doesn’t the Constitution, in the very same place say that the Chief Justice should preside over the impeachment trial in the Senate if the President is tried?”

“That’s what happened in the two presidential impeachments that I remember.”

“But, then, doesn’t it say in the very next paragraph, that those removed from office after an impeachment trial may afterward be prosecuted, convicted, and punished according to law?”

“I’ll trust your memory.”

“Does it anywhere say that the President will be immune from such prosecutions?”

“I’m going to say ‘no.’”

“Don’t you think the Framers of the Constitution would have put that in if that’s what they intended?”

I laughed and said, “Maybe they forgot.”

“Well, they didn’t forget in another place when they wrote in Section 6 of Article I that members of Congress are privileged from arrest except for the most serious crimes while they’re in session, or going to or from sessions, did they?”

“No.”

“And they didn’t forget in the same place to provide that members of Congress were not to be questioned about what they say in speeches or debates during a session, did they?”

“No.”

“And perhaps you were unaware that at the time the Constitution was drafted that some states specifically provided for criminal immunity for their governors.”

“I didn’t know that.”

“But in light of these things, doesn’t it stretch credulity that the Framers didn’t specifically provide for criminal immunity for the president if that’s what they wanted to do?”

“I suppose you’re right.”

“And to top it all off, were you aware that Alexander Hamilton—you remember him, he’s on the ten dollar bill—wrote in Federalist No. 69, in trying to convince New York to accept the new Constitution, that the president could be impeached and removed from office and “would afterwards be liable to prosecution and punishment in the ordinary course of law.” [5]

“He wrote that specifically about the president?”

“He did. So, it’s obvious that Alexander Hamilton, who was at the Constitutional Convention, didn’t think that the president would enjoy immunity for crimes he committed, am I right?”

I sighed heavily. “Yep. That’s what it looks like. Actually, it seems kind of obvious now. So why did the Supreme Court rule that the president has criminal immunity for his official actions?”

Socrates shook his head, and said, “I’m not a mind reader, Jacob.”

I turned the sound of the television back on.

 

--Jack Quirk

We Are Not at War With El Salvador

“

 

 Goodness,” I said, slamming the newspaper on the table. “Why can’t people get it through their heads that the President is just trying to protect the public?”

 

Socrates looked up from his coffee with the amused expression on his face that I had come to recognize. “Well,” he said, “What do we have our panties in a bunch over now?”

 

“Stop fantasizing about me wearing panties,” I retorted. “And this is no trivial matter. It’s about that Kilmar Abrego Garcia fellow. People are complaining about him being deported to El Salvador. But he’s a member of MS-13, which, by the way, has been designated a foreign terrorist organization. Don’t these people have any concern about public safety?” [1]

 

Socrates’s eyes furrowed as his look of amusement disappeared. “Are you sure that public safety is the issue here?”

 

“Of course it is,” I replied. “MS-13 is a serious international criminal gang. I’m glad someone is finally taking some action.”

 

“Isn’t the real concern that people are raising is whether Abrego Garcia was deported according to law?”

 

“Law, schmal. MS-13 doesn’t care about the law. Why should they get the benefit of something they ignore and violate routinely?”

 

“Well, now, just a minute,” Socrates said. “Couldn’t that be said about every lawbreaker?”

 

“What do you mean?”

 

“If someone commits armed robbery, couldn’t it be said that he is ignoring the law against robbery?”

 

“Naturally.”

 

“What about rape? Doesn’t someone who commits rape ignore the law against rape?”

 

“Sure.”

 

“And what about a murderer? Doesn’t he ignore the law against murder?”

 

“Of course,” I said. “What’s your point?”

 

“Don’t we always allow people accused of such things to contest their guilt in a jury trial?”

 

“Well, yes. I believe that’s called ‘due process.’”

 

“So, are you saying that members of MS-13 are a special category of people who aren’t entitled to due process?”

 

I thought for a minute, then said, “Okay, I see your point. But criminal trials decide whether or not the defendant will go to prison, or even get the death penalty. Abrego Garcia didn’t need to worry about that. All he had to worry about was whether he could stay in the country. There’s a whole wide world out there outside of the United States.”

 

Socrates laughed. “I think there are a good many people who forget that fact. But didn’t Garcia in fact go to prison?”

 

“Sure. He’s in a prison in El Salvador. But that’s because he’s a terrorist. MS-13 has been declared a terrorist group.” [2] 

 

“Okay, but the fact remains that he was sent to prison without a trial. Do you approve of that?”

 

“Socrates, during a war, enemies are taken prisoner all of the time without a trial.”

 

“Oh, was war declared against MS-13?” Socrates said with mock surprise. “I must have missed that.”

 

“Okay, maybe not an official war,” I responded only mildly flustered. “But they’re certainly at war with us.”

 

Just then, Tilly, our server, came by to freshen our coffees and take our order. She had obviously been hearing our conversation. “Are you two talking about that man who was taken to El Salvador? Isn’t that awful?”

 

Socrates laughed. “For those who have empathy it’s awful. For those who don’t, like Jacob here,” he said pointing to me, “it’s just great.”

 

Tilly clearly didn’t want to involve herself in our debate, and took our orders without further mention of what had happened to Abrego Garcia. When she left, I accosted him with his remark about my lack of empathy. “You think I’m some kind of unfeeling monster because of one guy. But what about all of the Americans who have been hurt or killed by illegal aliens? What about them?”

 

Socrates shook his head. “Surely you’re aware that immigrants, including illegal immigrants, have been shown to be less likely to commit crimes than those born in the United States?” [3]

 

“Okay, I’ve heard that. And maybe I don’t believe it.”

 

“Are you picking and choosing what facts to believe? Do you have any contrary evidence?”

 

“No, I suppose I don’t,” I admitted with a sigh. “But you certainly can’t say that MS-13 doesn’t commit any crimes.”

 

“No, but while we’re talking about evidence and the lack thereof, what evidence is there that Abrego Garcia is a member of MS-13?”

 

“He was identified as an MS-13 member by the police.”

 

“Are you talking about that time he was detained in Maryland in 2019?”

 

“I don’t know. I suppose so.”

 

“So you’re talking about the Maryland police officer who formally attested that he was a member of MS-13?”

 

“I don’t know the details. Maybe.”

 

“So, then you must be talking about the police officer who later got caught giving confidential information about a case to a sex worker and got prosecuted for it.” [4]

 

Socrates was never known to smirk, but he might as well have after that comment. “Okay, wise guy,” I said. “But that doesn’t mean that the cop didn’t know how to tell if someone was a gang member.”

 

“Doesn’t it reflect on his judgment?” Socrates asked undaunted.

 

“Maybe it does. But the Trump administration is holding firm on the idea. They must have some information about it.”

 

“If they do have such information, why haven’t they presented it in court so far?”

 

“Well, they’re trying to keep him in El Salvador for some reason.”

 

“Then why haven’t they explained any legal basis for what they did? In fact, haven’t they admitted that they removed Abrego Garcia to El Salvador because of an oversight?”

 

“Yes, I heard that. But what difference does it make in the end? He was going to be sent back to El Salvador eventually anyway. He did enter the country illegally, you know.”

 

“So he did. But isn’t it also true that in 2019 an immigration judge prohibited his removal to El Salvador because he faced a clear probability of persecution there, and that the authorities in El Salvador were unable or unwilling to protect him?”

 

“Okay, if you say so. And what justified that decision?”

 

“You didn’t know that he and his family were being threatened by the Barrio 18 gang in El Salvador?” [5]

 

“No.”

 

“Well, doggone it, Jacob,” Socrates said laughing. “Maybe some acquaintance with the facts would help before you acquire such a strong opinion about things.”

 

“Alright, Socrates, you’ve made your point. But even if he shouldn’t have been deported back to El Salvador, maybe he could have been sent to some other country.”

 

“And what country would that be?” Socrates asked laughing.

 

“I don’t know. Some place that wants him.”

 

“Why should that have happened? He was legally in the United States at the time he was apprehended.” [6]

 

At this point I thought I had him. “Ah, but President Trump has invoked the Alien Enemies Act. So it’s a whole new ballgame.”

 

“But the Alien Enemies Act only applies when there is a declared war or an invasion by a foreign government or nation. [7] Have either of those things happened?”

 

“Well isn’t MS-13 invading our country?”

 

“Is MS-13 a foreign nation or government?”

 

“No.”

 

“And his country is El Salvador. Are we being invaded by El Salvador?”

            “No.”

 

“Have we declared war on El Salvador?”

 

“No. I guess not. But Abrego Garcia isn’t a citizen of the United States. So he doesn’t have any rights under our Constitution anyway.”

 

“Are you sure about that? The Fifth Amendment says that no person is to be deprived of life, liberty, or property without due process of law. [8] Isn’t Abrego Garcia a person?”

 

“Well, yeah.”

 

“And hasn’t he been significantly deprived of his liberty?”

 

“Okay. Yes.”

 

“But was there any finding by a court before he was deported to El Salvador?”

 

“No. Okay, Socrates, I admit it. I’m an idiot. Are you satisfied?”

 

Just then, Tilly came back to our table with our breakfast. As she put the plates on the table she asked with a condescending smile, “So, have the two of you resolved your little argument?”

 

“No,” I replied. “It won’t be resolved until I punch Socrates in the mouth.

 

--Jack Quirk