Biden Has Presidential Immunity. He Should Use It.
Merrick Garland still doesn't know what time it is.
1. Shiny Objects
I want to talk about all of the Trump insanity. I want to talk about his insistence on “taking” Greenland. And the Panama Canal. And making Canada a U.S. state. And renaming the Gulf of Mexico the “Gulf of America.”
But guess what: Trump wants us to talk about this bs. He’s trying to dominate the news cycle, get attention, and keep the public talking about nonsense instead of the important story.1 So let’s not do that here?2
Instead, let’s talk about Jack Smith’s report. Because Democrats are poised to let Trump win again because they’re still playing by 2015 rules.
This week Trump’s legal team petitioned the attorney general not to release Smith’s report.
The chutzpah of these guys is off the charts. Because they aren’t saying, “The report should not be released.” At least that would be an argument.
No, Trump’s legal rationale is that the decision of whether or not to release the report should rest with . . . the next attorney general.
The icing on the cake is that they’re making this petition to Merrick Garland, who has some personal experience with Republicans denying a sitting Democratic administration the ability to execute governing decisions.
Fork. That. Noise.
Perhaps understanding how silly this petition is, Judge Aileen Cannon came off the bench (so to speak) to try to force Garland not to release the report. She issued an order forbidding the attorney general of the United States from publishing a report that federal regulations authorize him to publish when it’s “in the public interest.”
What authority does Judge Cannon have over the attorney general in this instance? Why is the publication of a government report in Washington under her purview in Florida, especially since, as Kim Wehle points out this morning, the case is no longer in her hands? And, most importantly, Smith’s report covers his two prosecutions and Cannon was formerly overseeing only one of those cases—so on what basis is she enjoining a report that covers another judge’s case in another jurisdiction?
These are questions we don’t need to answer because Cannon has proven herself to be nothing more than a naked political actor. Her conduct has been so egregious that Ty Cobb referred to her yesterday as Trump’s “tool” and said, “He [Trump] gets the results he needs from her.”
Reminder: Ty Cobb is not a resistance lib; he does not have TDS. He’s a conservative Republican who served as Trump’s own White House counsel. When one of the most important Republican lawyers in the country thinks a judge is cartoonishly crooked, that’s saying something.
Now you understand why Trump dispatched his kid and Charlie Kirk to Greenland yesterday for photo ops? Better to focus on a stunt than on Trump’s total corruption of the justice system.
2. Fear
Why are Trump and Cannon so desperate to prevent the special counsel’s report from coming out? Trump won. He’s going to be president. They’ve gotten everything they wanted.
Perhaps because Trump’s lawyers recently reviewed the final draft of Smith’s report. They’ve seen what’s in it. If it were a nothingburger—or if it was TOTAL EXONERATION—they’d want it public.
Surely that means something?
Smith’s report should be public. As a matter of tradition (all previous special counsel reports were published) and also as a matter of morality. The country should have a permanent record of Trump’s once-allegedly-criminal actions.
But also as a matter of politics. Remember: 2025 is the year of maximum peril. Every day that can be chewed up forcing the administration to fight on a topic they fear is a day they lose in pursuit of their authoritarian agenda. You would not know it from their current posture, but the Democrats are actually the opposition party. They have a duty to oppose Trump, on all fronts, and inflict political pain wherever they can.
It is not clear that the Democratic party, as an organism, understands this reality. And so the final reason for making Smith’s report public by any means necessary is to force Democrats to come to terms with the new rules of American government.
Government officials are now bound by the law—and only the law. The Republican party has worked hard to create this new order and has spent the last eight years exploiting this dynamic while Democrats have operated under the political arrangements that existed from, roughly speaking, 1974 to 2015.
The law says that Aileen Cannon’s injunction can, at least temporarily, halt the transmission of Jack Smith’s report.
But the law also says that any action a president takes as part of his official duties is, prima facie, legal. This was not formerly the case, but it is now. So if President Biden were to publish the report this afternoon in violation of Judge Cannon’s order, he would do so with total immunity.
Or, if the attorney general were to publish the report, putting himself at risk of being held in contempt of court, he could be pardoned by President Biden. That would all be perfectly above-board.
Yet, amazingly, Biden and Garland seem to still be in 2015 mode.
This morning Garland made clear, in a Justice Department court filing, that he intends to publish the volume of Jack Smith’s report concerning the insurrection case, but will hold back on the volume relating to the classified documents.3
Which means that, unless President Biden acts, it is unlikely that the public will ever see the section of Smith’s report that pertains to the stolen documents case.4 Garland will not publish the volume related to that case. Which probably means that this second volume will never see the light of day.
Can you believe this? Can you believe that, in 2025, Biden and Garland are still operating under Queensberry rules, where nonbinding precedents are controlling and everyone stays hands-off the process? That they are willing to let Trump off the hook again?
Let’s be totally and completely clear: President Biden should publish both volumes of Smith’s report before leaving office. Doing so would serve the public interest and—most importantly—would be legal. Because, as an official action of a sitting president, it falls under the Supreme Court’s blanket of immunity.
Joe Biden didn’t make these rules; but like it or not, the country is now governed by them.
Unilateral disarmament is for suckers and hippies.
At some point the people trying to uphold our liberal institutions are going to understand the world we now live in.
But they sure as shirt haven’t internalized it yet. Christopher Wray resigned instead of forcing Trump to fire him. John Fetterman is talking about how super-normal Kash Patel is because of some stuff he said in private. Jared Polis thinks RFK Jr. has some good ideas. Joe Biden brought Trump to the White House and smiled like an idiot with him. And in 12 days, Biden will be sitting there as Trump is sworn in, lending Trump legitimacy and helping to buoy his approval rating.
And for the love of all that’s holy, Merrick Garland is going to let internal policies prevent the public from learning what the special counsel unearthed about Donald Trump’s treatment of classified documents.
No wonder these people keep losing.
3. Godwin Can Suck It
The Atlantic recounts how Hitler legally dismantled Germany’s constitution in 53 days. Guardrails ftw.
Ninety-two years ago this month, on Monday morning, January 30, 1933, Adolf Hitler was appointed the 15th chancellor of the Weimar Republic. In one of the most astonishing political transformations in the history of democracy, Hitler set about destroying a constitutional republic through constitutional means. What follows is a step-by-step account of how Hitler systematically disabled and then dismantled his country’s democratic structures and processes in less than two months’ time—specifically, one month, three weeks, two days, eight hours, and 40 minutes. The minutes, as we will see, mattered.
Hans Frank served as Hitler’s private attorney and chief legal strategist in the early years of the Nazi movement. While later awaiting execution at Nuremberg for his complicity in Nazi atrocities, Frank commented on his client’s uncanny capacity for sensing “the potential weakness inherent in every formal form of law” and then ruthlessly exploiting that weakness. Following his failed Beer Hall Putsch of November 1923, Hitler had renounced trying to overthrow the Weimar Republic by violent means but not his commitment to destroying the country’s democratic system, a determination he reiterated in a Legalitätseid—“legality oath”—before the Constitutional Court in September 1930. Invoking Article 1 of the Weimar constitution, which stated that the government was an expression of the will of the people, Hitler informed the court that once he had achieved power through legal means, he intended to mold the government as he saw fit. It was an astonishingly brazen statement.
“So, through constitutional means?” the presiding judge asked.
“Jawohl!” Hitler replied.
Read the whole thing. It’s important.
For a different view, read Andrew Egger from this morning. It’s a great piece and his argument is smart. But ultimately I don’t buy it.
There are no plans to actually do any of the things Trump is talking about. There are no viable legal structures to make them happen. Seriously: How would Canada become a U.S. state? What are the series of mechanisms that could achieve that goal? Establishing the European Union took decades and that left everyone with sovereignty. German reunification was quicker—but that was an artificial split that was only about 50 years old.
How would Canada legally decide to give up sovereign nation status? What is the procedure in the Canadian constitution for that action? How would the United States incorporate Canada? No one is even discussing any of this because no one is serious about it.
Okay, well, Sarah and I did talk about it on YouTube yesterday. I want to do the right thing, but I’m only flesh and blood.
Because there is still a case pending against two of Trump’s co-defendants and it is Justice Department policy not to publish reports like this while cases are still pending.
Nota bene: “Policy precedents” are different from “legal obligations.”
Because the criminal case against Trump’s co-defendants will still be ongoing by January 20, leaving the decision of whether or not to publish to Trump’s attorney general. Meaning: It gets buried for all time.
JVL: "At some point the people trying to uphold our liberal institutions are going to understand the world we now live in."
Or more precisely, the people trying to uphold our liberal institutions are going to understand that the voters do not care about upholding our liberal institutions. If they did, Harris would have won handily.
And before someone writes, "Tim, Trump only got 49.5%+ of the vote" and "We didn't vote for this" and "People didn't show up for Harris the way they did for Biden", the fact that 49.5%+ of the electorate is fine with sunsetting those institutions is **exactly** the problem. The country will not survive should this continue unchecked.
So JVL is right. Biden should say, YOLO, and release the whole damn report. And when MAGA objects, kindly point out to them what applies to Trump w.r.t. presidential immunity also applies to Biden until noon on January 20.
Reading Kim Wehle was the first time I heard some suggestion that Biden use the _Trump v. US_ immunity (can we just call it “the _Trump_ immunity”, like “the _Chevron_ deference”?) and reacted with “YES! Obviously!”
The previous suggestions were mostly not just outside norms and law but outside norms and law for a good reason. This time, as Wehle writes, they’re attempting a “checkmate of the rule of law” via delay. And THAT is an excellent reason for Biden to use the damn _Trump_ immunity, if nothing is.
Just f-ing do it, Joe. Cap off your now-tarnished legacy with a grace note. Maybe a dissonant jazz grace note that’s not your usual style, but a grace note nonetheless.