Yeah but at least there would be something there, written down, (rather than nothing as at present) that people could point to and say “This is a breach of the code”
The emoluments clause is already in the constitution. Written down as part of the highest law of the land. Trump violated it. Didn’t matter.
The emoluments clause is out of date though and too vague. The code wouldn’t replace it, just modernise and clarify it. It’s not clear what an emolument is. There’s modern forms of emoluments not envisaged at the time like branding, licensing, family enrichment. Stuff the framers couldn’t have imagined. The code would act to interpret the emoluments clause for the modern day. I dunno. It’s just an idea.
No it isn’t, and no it wasn’t. It was clear and for 99.99% of the time, it worked…until it was ignored. Anything that replaces it will either be watered down or, once again, be totally ignored.
I’m not sure what sort of reorganization would work.
Enforcement of federal law (which is what the DOJ does) almost has to be run by the executive branch. You certainly don’t want the legislative branch to do it.
An independent judiciary is supposed to be the check on misuse of law by the executive. With the legislative branch (via impeachment) the ultimate check.
While I think most of us agree that the DOJ has been thoroughly politicized during this administration, I think for the most part the judicial guardrails have held up reasonably well. I can’t think of any politically-motivated prosecutions that have been successful. I understand that the process can be the punishment, but it seems to me that the resolution for that is electoral. We will see this fall how well the legislative/electoral guardrail works as a check on misuse of the DOJ.
Finally, whether we like it or not, the voters in 2024 did seem to indicate that they felt like the DOJ actions towards Trump between his two terms were also politically-motivated. At least to the extent they were willing to elect him again.
Leverage this political willpower to entrench that doctrine in compulsory education.
Yes, laws can be repealed after the next election. But by then you’ve made a lasting impact on two years of young minds.
~Max
What you have there is a recipe for a nice little empire, run by a committee. Accountable to no-one outside itself. If you think it’s been futile to rely on human decency to keep the DoJ safe from abuse and us citizens safe from the DoJ, what is to protect us from them if none of them can be removed from office?
The question has been around for a long time – quis custodiet ipsos custodes? Who will protect us from our protectors? You must have accountability of everyone to someone else.
I think our system of checks and balances was pretty robust until it ran up against the combination of a demagogue with no shame and the unswerving allegiance he has commanded, giving him control over all three branches of government. The judiciary was supposed to be the independent bulwark until it was overrun at the top by corruption and self-serving power-hungry despots – who again got in there because of the popular votes for those who nominated and approved them. I agree with those who think that the Federal Judiciary needs the most reform, especially the Supreme Court. I think recent events have proven well enough that lifetime appointments are not a good idea. Whatever the term length (10 years sounds good to me) the 9 justices’ terms should be staggered so that no 2-term president could fill more than 2 of them (someone will have to do the math to see how that works out with 10-year terms). If any of them resigns or dies during their term, some special process would have to be designed so that wouldn’t throw off the formula, and the replacement justice would not be eligible to serve longer than the partial term they were chosen for.
My goal in the above is to try to make sure that the Supreme Court is, on whole, centrist. I don’t want a liberal super-majority any more than I want a conservative or reactionary or communist one. Let them argue it out among themselves, some of the votes will cancel out, and good arguments may win out.
I wouldn’t mind seeing some institutional process for reminding voters a) which justices voted for and against which decisions, and how those decisions worked out in real life; b) what, if any, financial benefits justices might have gotten that might have influenced their votes, and c) which administration nominated them. Let the wind of exposure blow through the courts, see if that helps anything.
Scorecards have fallen out in recent years as single-issue groups were sidelined by pro/anti Trump. But I think scorecards should make a comeback. That stuff was straightforward and informative, for a non-politico. Misleading sometimes but hey, everyone knew that.
~Max
I’ve seen 18 year terms discussed before, with one appointment every 2 years, working out to 2 per presidential term. 10 years wouldn’t be very good, although 9 years might work if we’re ok with a nomination every year instead of every other year. Of course you can always play around with the size of the court as well, maybe making it 18 members instead of 9, with 18 year terms, again working out to 1 per year. Who knows which, if any, of those would work out better in practice to prevent SCOTUS from going rogue.
I guess I’m not 100% convinced. The only way I can think of to make a non-partisan court is with lifetime appointments. We may decry the current SCOTUS makeup (at least I do) but it is only the way it is due to two events: McConnell refusing to hold a vote on Garland (and then Trump winning in 2016) and RBG dying six weeks before the 2020 election.
Neither one of those had to happen that way.
I agree that SCOTUS is the real issue. To me it was most glaringly obvious when reports came out of Clarence Thomas’s glaring corruption, how he was being openly bribed in a way that would get him fired or removed most anywhere else in government, and there were calls for SCOTUS to be subject to the most basic of ethics requirements. And SCOTUS said, basically, “Nah, we’re good thanks.”
This was way back in 2012 for crying out loud.
SCOTUS was given unparalleled freedom in what they do. They have absolutely zero formal requirements for qualification; citizenship, age, background. They serve indefinitely unless they choose to retire or they die. They aren’t really accountable to anyone for anything; theoretically they can be impeached, but that has only happened once in the history of this nation (back in 1804) and ended in acquittal.
All of that was intentional, I know… The hope was that by giving them that level of independence, they could be truly impartial and can rule fairly by rule of law without political pressure. Clearly that idea doesn’t work in practice, at least not anymore. I do really think that they need to be held accountable somehow.
If SCOTUS actually upheld the rule of law, then the DOJ couldn’t be weaponized the way it has been in Trump’s tiny hands. And we’d have a lot fewer other problems. Any real reform has to start there in my opinion.
How non-partisan would you say the current Supreme Court is?
I think that really understates the problem. These are not a minor inconvenience for most people. Take the guy who threw his Subway sandwich at an ICE agent. They tried to prosecute him for assault and impose a 10-year prison sentence on him.
He was acquitted but I am willing to bet he was freaking out for months. Not to mention lawyer fees (he probably got donations to cover the costs but most people just have to pay it).
Remember Aaron Swartz? He downloaded 4 million academic papers illegally and faced 13 felony charges. MIT told the government they no longer wanted to prosecute. An overzealous prosecutor refused to drop the case or negotiate. Swartz committed suicide as a result.
The process can be every bit as bad as the punishment. In the case of Swartz it was a death sentence. Not sure what electoral remedy there is here.
Well it’s hard to quantify, I’d say. I’m not sure what metric one would even use. Alito clearly “crosses the aisles” the least, while Thomas is probably second-least but still does a reasonable amount of time.
The most “partisan” cases I can think of was the Colorado one re: keeping Trump off the ballot (a 9-0 decision) and Trump v. United States which was decided 6-3 along the expected lines. But ultimately it’s hard to argue that the public didn’t get a chance to express their opinion on whether Trump deserved to be elected to office again - he got a majority of the vote nationwide in 2024.
I don’t think we can really compare the partisan makeup of the current court with a hypothetical one in which justices were term-limited. Consider how someone like Souter or Kennedy changed over their decades on the court. They might have been term-limited and replaced by GWB before their more moderate tendencies came out.
So I guess I’d answer “more partisan than I’d like but possibly less partisan than a court with term-limited justices”.
I think increased partisanship is almost guaranteed now that the 60-vote threshold in the Senate has been removed.
I don’t want to be glib, because that is a heartbreaking case. But that entire case was prosecuted during the Obama administration. It’s hard to ascribe a particular political motivation to it. And from what I can tell Swartz was offered a 6-month plea deal, which he refused, so “refused to negotiate” doesn’t seem correct.
I have no doubt Sean Dunn (the Subway sandwich guy) was scared, but he never faced any felony charges (the Grand Jury declined to indict). And he was acquitted on the misdemeanors after like a 2-day trial. Does it suck? Absolutely. Complete BS charges. But I think (hope?) it’s a sign that most of these attempts at using the DOJ as attack dogs are failing.
Finally, the electoral remedy is to not elect politicians that want to be draconian in their use of the law - whether it’s using computer fraud laws against students leaking documents or trying to bring assault charges against protestors throwing sandwiches. Whether the public will do that or not remain to be seen - “tough on crime” always seems to sell with the masses.
I did not mean that as an example of political motivation (honestly, I think it was an overzealous prosecutor looking for headlines).
I used that example to highlight that often the prosecution is the punishment even if the person is acquitted in the end. And this is what the Trump admin is doing when weaponizing the DoJ. It’s not whether they win or lose. It is dragging someone through years of litigation and huge attorney costs. The fear all the time it is happening that you will be well and truly fucked. Doesn’t matter who wins in the end. The damage is done.
I’d probably make the Attorney General a position appointed by the Supreme Court by a supermajority, rather than by the President.
Yes, going all the way back to his first term, he has loved to use frivolous investigations as weapons. He doesn’t care about actually charging and convicting people, the investigation itself is the punishment. And he doesn’t need any pretext for an investigation; he can investigate anyone for anything at any time as the leader of the Executive, and he uses it the way a regular person uses a TV remote to change channels. It’s a useful tool to use at a whim. And it works. It absolutely harms people regardless of the results. It’s his favorite weapon as POTUS.
I’m not clear how a fixed term in office for each justice would make the court less non-partisan. The court is never non-partisan anyway, it is just usually better balanced than at present.
After reading @FlikTheBlue’s post above, 18 years does sound better than a 10-year term, although spacing the term ends for every 2 years would allow a 2-term president to nominate 4 justices, which is more than I was hoping for. It seems like the term ends could be spaced out by 3 years instead of 2, then a 2-term president would only get 2 or 3. The term ends could happen in, say, April or May, with nominations and Senate hearings and voting required before then. That would prevent future McConnell wannabe’s from being able to exercise that kind of influence.
Probably a good idea to wait and see how bad it gets. I mean, Trump is dissatisfied with Bondi and thinks she’s ineffective. She’ll be fired and replaced with someone much worse (or no one). I’m pretty sure you’ll just have DOJ people inside the white house implementing what Trump wants more directly than having to pressure the AG.
With that said, the executive is the top law enforcer, but Congress can control how that enforcement is done through legislation. Take the norms and make them statutes. Criminalize pressuring the DOJ.
But how does that work if the ones enforcing the law itself is the DOJ? It’s not like a corrupt AG is going to bring charges against themselves.
The only workable system against corrupt prosecution is an independent judiciary, including juries of one’s peers. As long as the only way to convict someone is to prove it in a court of law in front of a judge that can’t be removed by the executive and a jury made up of normal folks, we have a reasonably robust safety net.
The secondary backstop is free and fair elections where bad actors can be removed by the populace.
That’s why those are my two litmus tests for “oh crap, maybe it is time to leave”. So far the elections in 2025 were free and fair, as far as I can tell. The midterms this fall will tell a lot. And so far even Trump-appointed judges haven’t started ignoring the law to lock up political opponents. They have given his administration more latitude than I would like, but it’s hard to argue that they have given him carte blanche to start locking up Democrats.