How Charlottesville Broke the Peace

If you believe the media build-up, Joe Biden’s political future, and the country’s fate, depends on the President’s interview with George Stephanopoulos tonight. Historic times, right? America’s very survival hinges on whether the Democratic Party’s candidate can pass his big test — which will be administered by the Party’s most famous fixer. Remember that it was Stephanopoulos who did a documentary on Christopher Steele to whitewash the Hillary Clinton operative years after the Trump-Russia narrative he was paid to sell was exposed as a hoax. So, sitting with Stephanopoulos isn’t exactly running the gauntlet. What’s really at stake if Biden doesn’t ace the interview is less the President’s political future than the interviewer’s. Stephanopoulos is toast if he can’t do the one thing he’s paid to do — service Party interests.

I was saddened to hear the news today that Dr. Ruth Westheimer has passed away at the age of 96. I danced with her once.

In the mid-1990s, I edited the Voice Literary Supplement, the monthly literary review of the Village Voice, America’s first alternative weekly newspaper. We hosted regular events in New York to publicize our contributors, which often turned into contentious, albeit rewarding affairs, like the night my friend Joe Wood argued with Stanley Crouch about the legacy of the great Albert Murray. Crouch had famously beat up another Voice writer, Harry Allen, to conclude their debate about music, but that night Joe and Stanley simply moved to the bar to continue their argument.

The VLS’ publisher wanted to have a party in Chicago to coincide with the American Book Association’s annual book fair. So, we arranged to co-host it with Verso Books, a leftwing publisher then headed up by Colin Robinson, a Brit with a gravelly baritone voice made for BBC radio theatre. The other co-host was The Baffler, a great small magazine based in Chicago and hooked into the city’s lively indy scene so they arranged for the music.

I tried to get David Foster Wallace to come. He was in the area staying at his parents’ home in Illinois. I think it was the year Infinite Jest came out and he’d done lots of publicity, so he opted out. But I’d gotten him to agree to review Joseph Frank’s biography of Dostoevsky. He grumbled when he realized it was a five-volume work, but David’s essay is great — it’s here.  

I guess Dr. Ruth had a new book out that year. Her bibliography shows that the ‘90s were perhaps her most prolific decade. She was so famous that Saturday Night Live impersonated her. Dr. Ruth was everywhere — radio, TV, movies. She was also at our party.

I can’t remember who invited her but there she was, the world’s most famous sex counselor standing on the sidelines like a high-school girl at her first dance. She smiled at me. Maybe it was just because I was the host. The music was very loud, so I leaned in closely and then led her to the dance floor. It was only for one song, but she was smiling the whole time, and so was I.

It was only later that I learned about her life. She grew up in an orthodox Jewish family in Frankfurt and at the age of ten her mother sent her to Switzerland to keep her safe. The Gestapo had already taken her father away to Dachau. He was murdered at Auschwitz. Her mother and all her relatives were murdered in the Holocaust. After the war, she moved to pre-state Israel, trained as a sniper with the Haganah, and was wounded during Israel’s war of independence. At the age of 90, she showed she could still reassemble a gun with her eyes closed. She studied in Paris and New York, where she worked as a maid to put herself through school. She spoke German, Hebrew, French, and English. She was married three times and leaves behind her two children. She was a serious woman who knew how to laugh at herself. She made a career out of encouraging people to enjoy their physical intimacy with others. She had an unforgettable smile.

May her memory be a blessing.

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Monday’s 6-3 Supreme Court decision, Trump v US, acknowledging the President of the United States enjoys absolute immunity while conducting official affairs came as good news not only for Donald Trump but also aides who served in his administration, including Assistant Attorney General, Jeffrey Clark.

In the immediate aftermath of the 2021 election, progressive legal activist and longtime Barack Obama ally Norm Eisen teamed up with federal law enforcement authorities, the media, and Senate Democrats to zero in on the Trump appointee. A January 2021 New York Times article laid the groundwork for the attack by categorizing Clark’s efforts to give the President he served legal counsel to challenge 2020 vote results as a Justice Department coup.

In October 2021, Illinois Senator Dick Durbin called for the Washington, DC Bar to investigate Clark. This April, a disciplinary hearing committee judged (albeit on a preliminary, non-binding basis) that Clark violated a rule of legal ethics, without specifying which one, for drafting an unsent letter to Georgia officials regarding the election. The Bar’s Disciplinary Counsel said Clark should be disbarred.

In August 2023, Clark was also one of 19 people, including Trump, charged by Fulton County, Georgia District Attorney Fani Willis for interfering in the 2020 election. That case has been stalled and no date has yet been set for the trial. One of the motions pending before the judge was filed by Trump’s attorney arguing that the case be dismissed on grounds of presidential immunity.

I spoke with Clark’s lawyer, Harry MacDougald, who explained how the Supreme Court decision should help both his client’s cases.

“The Court’s ruling extended absolute immunity to ‘core constitutional powers,’” says MacDougald. “This was specifically applied to Trump’s discussions with Department of Justice officials about investigating the election, potentially replacing the Acting Attorney General Jeff Rosen with Jeff Clark, and potentially sending a letter to state officials from DOJ. Such actions are not reviewable in any other forum and cannot be restricted by Congress or the Courts.”

Those are the very activities for which Clark is charged in both the Georgia indictment and the DC Bar case. “Clark was a participant in the activities that are within the scope of the absolutely immune core constitutional powers,” says MacDougald. “If Trump is immune, Clark is immune.”

In addition, says Clark’s lawyer, “the Court held that there was a category of official conduct that was not absolutely immune, but ‘presumptively’ immune. But to prove a crime for conduct in the ‘presumptively’ immune category, no evidence can be introduced that would intrude on the President’s core constitutional powers.”

The Supreme Court, says MacDougald, “was keen to protect the exercise of core constitutional powers from intrusion, lest the President be deterred in the vigorous discharge of his duties. To prevent such intrusion, the Court prohibited the use of any evidence relating to the exercise of these core constitutional powers.”

As the Court explained: “If official conduct for which the President is immune maybe scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the ‘intended effect’ of immunity would be defeated.”

MacDougald adds: “If evidence of Trump-to-DOJ communications cannot be introduced against Trump, they cannot be introduced against Clark.”

From a summary provided by the Court’s Reporter of Opinions:

“[T]he parties and the District Court must ensure that sufficient allegations support the indictment’s charges without such [core immune] conduct. Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial.”

And, says MacDougald, “all the evidence regarding Clark’s conduct is clearly and obviously within this zone of prohibited evidence. We made a motion in the DC Bar case to exclude all such evidence on the grounds that it intruded on the President’s core constitutional authorities. The motion was, of course, denied. But the decision in Trump v. US confirms that the Constitution prohibits the admissibility of the evidence against Mr. Clark at the Bar hearing.”

All of this relates to Trump v. US and, says MacDougald, “an additional and equally solid constitutional defense is that the Supremacy Clause prohibits inferior governments such as the State of Georgia or the District of Columbia from interfering with or intruding upon the operations of the federal government. The opinion in Trump v. US cements the validity of this argument because it irrevocably establishes that the conduct for which Clark is charged is within the scope of the President’s core constitutional authorities.”

There may not be much movement on either case right away, but MacDougald and his client are optimistic, and grateful. When I spoke with Clark on the phone he told me: “Despite threats of criminal contempt of Congress, disbarment, criminal prosecution in Georgia, the destruction of my career, enormous legal fees and being ostracized by the establishment legal community, I have stood fast on principle to protect the same core constitutional authorities of the Presidency that the Supreme Court upheld in Trump v US.  It has been a long and very difficult ordeal. I am strengthened by the prayers of those who support me and gratified by the vindication by the Supreme Court.

With Trump v US, the Roberts Court has sent a clear message to progressive activists who have weaponized the justice system to target their political opponents. The war may not be over, but this battle has been decisively won by the Constitution. It’s time to let Jeff Clark come home.

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