Israel dramatically escalated the conflict in the Middle East by bombing what it called the headquarters of Hezbollah in Beirut, killing the leader of Hezbollah, Hassan Nasrallah, as well as Gen. Abbas Nilforushan, one of the prominent generals in Iran’s Revolutionary Guard. The timing of the attack was impeccable: the Israeli Knesset is in recess until 24 October and the US in nearing its Presidential election which make any dramatic change in US policy unlikely. The US was not forewarned about the attack and it came as Israel rebuffed US efforts to forge a temporary cease-fire between Hezbollah and Israel.
Hezbollah has long been opposed to the state of Israel and there have been many clashes between the two entities which included Israeli occupation of southern Lebanon in 1982, an event that led to the formation of Hezbollah and an occupation that lasted 20 years. That occupation was a disaster for Israel–it was very costly in lives and expense–and it settled nothing: “In 1982, tens of thousands of Israeli soldiers were sent into Lebanon. About 650 Israeli soldiers were killed in the fighting and another 750 during the subsequent occupation. That makes it Israel’s third costliest war, after 1948 and 1973.” [that article was published in 2006 and does not include the expense of the current war].
There is little sympathy for Hezbollah in the world, but in 2018 Lebanese election, Hezbollah and its allies gained a majority in the Parliament (but lost the majority in the 2022 election). So we are not just talking about a terrorist organization but also a major political actor in Lebanon. The US and its European allies will not shed any tears about the killing of Nasrallah, but all Israeli allies are worried about what the next step in the conflict may be.
It seems likely that both Iran and Hezbollah will respond in force, but neither side has any good options given the Israeli defenses and the willingness of the US to provide additional air defense protection. THe failure of an earlier Iranian attack, in which it launched almost 300 missiles which were mostly intercepted, makes anything other than a massed missile attack likely to fail. Such an attack would likely require attacks against population centers which would outrage the world. But Iran and Hezbollah lack the ability to make effective attacks aginst specific military targets in Israel. Neither Iran and Hezbollah can afford to appear impotent if they wish to maintain their ability to organize opposition to Israel.
While there may not be an effective response to the Israeli attack, it is also not clear what Israel has gained through this attack. Both the US and Israel have a fixation on assassinating individuals in hopes of affecting the dynamics of the long-standing conflict. Israel has been remarkably successful in killing people it believed were involved in terrorist activities. Wikipedia has a list of those killed by Israeli forces and it is extensive (too long to reproduce here).
But killing individuals is not the same as addressing the root causes of the violence. Nasrallah is dead, but does anyone doubt that Hezbollah will find a new leader? Indeed, the ranks of Hezbollah have probably increased as a result of the Israeli attacks. And, if Israel invades Lebanon to ssecure its border, how long will the Israeli occupation last?
Israel has seemingly unlimited resources ot fight its wars and the US offers Israel almost airtight protection against counterattacks. Netanyahu obviously believes that more war is the right course of action for Israel. Perhaps Netanyahu should be reminded that there is a real possibility that its allies will withdraw their support unless Netanyahu begins to pursue policies that lead to peaceful resolution.
Israeli Prime Minister is clearly provoking Hezbollah into a broader regional war. Since the 7 October attacks by Hamas on Israel, there has been a persistent low-level conflict at the Israeli-Lebanese border. But the Israelis have escalated the conflict throught the introduction of the booby-trapped pagers and walkie-talkies and the direct aerial attack on Beirut. These actions comes on top of the Israeli attacks against Hezbollah and Hamas leaders in Syria and Iran. In short, Israel has already committed acts of war against three soveriegn states: Lebanon, Syria, and Iran.
These attacks have been quite successful in diminishing the command structure of both Hamas and Hezbollah. But the apparent Israeli assumption that by eradicating the leadership of these organizations, it is reducing the tactical threats of these organizations to Israeli security is profoundly mistaken. Unquestionably, these organizations have been set back and will need to establish new leadership and new communication strategies. But the attacks serve only to amplify the sense of grievance that underlies the conflict. In particular, Hezbollah will have to respond in some effective way or it runs the risk of becoming totally irrelevant. Writing for the Long War Journal, Joe Truzman outlines the dynamic:
“How and when will Hezbollah respond against Israel is the question on the minds of Israeli military leaders, analysts, and many people living in the region. Retaliation will surely come, but it won’t be a knee-jerk reaction. Hezbollah has demonstrated over the past 11 months that despite initiating a conflict with Israel under the guise of assisting Palestinian civilians in Gaza, it prefers to keep the fighting limited to southern Lebanon. However, after months of rocket fire against Israel and the resounding response by the IDF in the last days, the era of limited conflict may be reaching its conclusion in the days ahead.”
Hezbollah and Iran have been remarkably restrained thus far in their responses to the Israeli attacks, most likely because they have yet to figure out an effective response. The both know that the US and its allies in the region have the capability to shoot down many missiles before they hit their targets. The only possible way for Hezbollah and Iran to actually damage the Israeli homeland is through a massive attack that would deplete their arsenals and would only be effective against population centers in Israel. Such an attack, however, would clearly trigger off a massive response by Israel and the US. That outcome would be disastrous, but it might be a better outcome than humiliation and irrelevance.
The real question is why Israel is pushing its adversaries into such a catastrophic position. The question takes on special urgency since we have no idea what the Netanyahu government intends to do with the Gaza Strip. The war there is essentially over: Hamas is probably incapable of launching any attacks on the Israeli homeland any time soon: “As military operations continue in Gaza and the West Bank, the overall posture of the Israeli military appears to have shifted north. Israel has shifted its 98th Division, which contains the Commando and Paratroop Brigade, to the north. This is a key division that played a major role in Gaza fighting between November 2023 and July 2024. It is joining a number of IDF divisions already deployed there.”
But a larger war would take the eyes of the world off of Gaza and that objective may be the purpose of the escalation–to provide cover for the eventual takeover of the Gaza Strip by Israel. The Middle East Eye suggests that this objective is indeed real: “The threat of war, however, will have implications far beyond Lebanon, as it will turn the world’s attention away from Gaza and allow Israel to complete its mass killing and ethnic cleansing of Palestinians.” NBC News reports:
“Warnings from the White House — and the United Nations’ top court — appear to have done little to stop some of Israel’s right-wing ministers from touting a vision that the country’s own prime minister has dismissed: rebuilding Israeli settlements in Gaza after the war.
“Several ministers within Prime Minister Benjamin Netanyahu‘s right-wing government were among thousands of people who flocked to a conference in Jerusalem on Sunday night calling for Israelis’ ‘resettlement’ of Gaza, with far-right National Security Minister Itamar Ben-Gvir and Finance Minister Bezalel Smotrich delivering keynote speeches.
“The conference, dubbed ‘Settlement Brings Security,’ was led in part by the right-wing Nachala organization, a group advocating for the expansion of Jewish settlements, which are considered illegal by international and humanitarian bodies. The event called for Israel to rebuild settlements in both Gaza and northern parts of the occupied West Bank.”
That objective seems fanciful, given the massive destruction in Gaza. But it is precisely because the Israelis have destroyed the infrastructure of the Gaza that resettlement becomes possible. No states, including Israeli allies, will contribute to the reconstruction of the Gaza as long as it remains under Israeli control And the Israelis will not contribute to the reconstruction of Gaza unless it is accompanied by resettlement. The end result is that the default option for the battered Gaza Strip is Israeli control.
The Israelis have decided to start a fire in order to put out another fire. They would be well-advised to read The Possessed by Dostoyevky. In that novel, a revolutionary group starts a fire in a town and the immediate response of the townspeople is to put out the fire. But as a governmental official watches those efforts, he reveals the underlying truth to resistance movements:
‘What is he doing there?’
‘He is putting out the fire, your Excellency.’
‘Not likely. The fire is in the minds of men and not on the roofs of houses.’
Israel bombed a school being used as a shelter for displaced Palestinians in Gaza today, killing as many as 100 civilians according to the Gaza Healthy Ministry. The Israelis claimed that the school was being used by Hamas as a command center and asserted that 20 terrorists were killed in the strike and disputed the number of civilians killed. The Israelis have destroyed most of the schools in Gaza: “The U.N. previously said that as of July 6, 477 out of 564 schools in Gaza had been directly hit or damaged in the war, adding that Israel has a duty under international law to provide safe shelter for the displaced.” Moreover, the Israelis claimed to have used precision weapons which may have included weapons supplied by the US: “Unverified reporting indicated that at least one of the missiles dropped on the al-Tabin school overnight may have been a U.S.-made MK-84 bomb weighing 2,000 pounds.”
“The White House is ‘deeply concerned’ about reports of civilian deaths in Gaza related to Israel striking a school in Gaza City that killed at least 80 people, saying the strike “underscores the urgency of a ceasefire.”
“’We are deeply concerned about reports of civilian casualties in Gaza following a strike by the Israel Defense Forces on a compound that included a school,’ NSC spokesperson Sean Savett wrote in a statement to The Hill. ‘We are in touch with our Israeli counterparts, who have said they targeted senior Hamas officials, and we are asking for further details.’
“’This underscores the urgency of a ceasefire and hostage deal, which we continue to work tirelessly to achieve,’ Savett added.”
The US position is indefensible. On the same day that the attack occurred, the US sent $3.5 billion in military assistance to Israel without any assurances that “precision” bombs would be used with more precision (the idea that a 2000-lb bomb can be “precise” in a densely populated area is malicious doublespeak). Israel’s procedures which permit the killing of civilians as long as there are Hamas militants in the general area is completely at odds with the laws of war. There have been 40,000 deaths in Gaza since the war started last October. The US has a law (the Leahy Law) which prohibits “the U.S. Government from using funds for assistance to units of foreign security forces where there is credible information implicating that unit in the commission of gross violations of human rights.” The US has sent about $310 billion in military aid to Israel since its sounding–by far the most supported country in the world despite the fact that its per capita GDP ranks 14th in the world.
The US-led alliance that thwarted Iran’s mille attack last April undoubtedly contributed to Prime Minister Netanyahu’s sense of immunity to attacks in the future, and the subsequent killing of Hamas leader, Haniyeh in Tehran. Because of the US missile shield, the Prime Minister has pursued policies aptly described as rogue. He appears to ignore international condemnation and any pressures from the US to move toward a cease-fire. Indeed, the Prime Minister appears willing to risk a war with Iran, believing that the US would defend Israel. The US should announce an arms embargo on Israel until a cease-fire is reached and to withold future military assistance to Israel until an agreement between Israel and the Palestinian people is reached on the future of the Occupied Territories.
I need to correct information I posted yesterday. The news reports yesterday were that Hamas leader Haniyeh was killed in Tehran by a guided missile. Apparently, that information was incorrect. The New York Times is reporting that the bomb that killed Haniyeh had been planted in the apartment in which he was staying months before. According to the Times:
“Ismail Haniyeh, a top leader of Hamas, was assassinated on Wednesday by an explosive device covertly smuggled into the Tehran guesthouse where he was staying, according to seven Middle Eastern officials, including two Iranians, and an American official.
“The bomb had been hidden approximately two months ago in the guesthouse, according to five of the Middle Eastern officials. The guesthouse is run and protected by the Islamic Revolutionary Guards Corps and is part of a large compound, known as Neshat, in an upscale neighborhood of northern Tehran.
“Mr. Haniyeh was in Iran’s capital for the presidential inauguration. The bomb was detonated remotely, the five officials said, once it was confirmed that he was inside his room at the guesthouse. The blast also killed a bodyguard.”
The news (if accurate) would be a debilitating blow to the Revolutionary Guard which had been entruted with security for the apartment complex. The news indicates that there are elements within the Guard cooperating with the Israelis. The conclusion is that the Guard is incompetent and untrustworthy. That conclusion may temper the Iranian response to the assassination. We will find out.
The chances of a wider regional war in the Middle East have increased over the last few days. Up until recently, the main military activity has been the Israeli invasion of the Gaza Strip, while there have been sporadic military operations between the Israelis and Houthi and Hezbollah forces. Israel has escalated its attacks in Lebanon, attacking a site in Beirut to target a Hezbollah operative, and today it targeted a Hamas leader, Ismail Haniyeh , in Teheran, Iran. According to the Associated Press:
“Iranian U.N. Ambassador Amir Saeid Iravani in a letter on Wednesday blamed both strikes on Israel. He and said they ‘suggest an intention to escalate conflict and expand the war through the entire region.’ He called on the international community for ‘decisive action to address these violations and hold the perpetrators accountable.’”
Israel has taken responsibility for the strike in Beirut, saying it killed a top Hezbollah commander. But Israel has been silent about the strike that killed Haniyeh, though it had vowed to kill him and other Hamas leaders over the group’s Oct. 7 attack that sparked the war in Gaza.
Israel has not claimed responsibility for the assassination of Haniyeh, but has in the case of senior Hezbollah commander Fouad Shukur in Lebanon. Israel, however, has a long list of targeted assassinations in the region. It is difficult to overstate the significance of the more recent assassinations. To be clear, bombing another country is always regarded as an act of war, and Israel has now bombed targets in Lebanon, Syria, and Iran. Israel believes that its actions are simply a logical extension of its war against Hamas, but that narrow perspective is not justified: no state can ignore the consequences of such attacks on its sovereignty.
The attacks confirm my suspicions that Israeli Prime Minister Netanyahu is trying to escalate the conflict. First, Haniyeh was killed while he was attending the inauguration of the new Iranian President, Masoud Pezeshkian. Pezeshkian is considered a moderate, breaking away from the hardline views of his two predecessors. But the attack will only strengthen the hands of the hardliners in Iran, particularly since the attack was an embarassment to the Iranian defense forces–the attack was done by a precision-guided missile against a target in the capital city of Tehran. Moreover, Haniyeh was a guest in Tehran and the protection of guests is a sacred obligation in Islam.
Second, Haniyeh was a principal negotiator in the current negotiations for a cease-fire in Gaza. There is probably no greater way to sabotage negotiations than to actually kill one of the interlocutors. Moreover, Israel has recently attached more preconditions to a ceasefire that was described by an Israeli official in these terms in an article in Axios: “Netanyahu wants a deal that is impossible to get. At the moment he isn’t willing to move and therefore we might be headed for a crisis in the negotiations rather than a deal”.
There is little question but that Iran and its proxies, Hezbollah, Hamas, and the Houthis, will respond to the Israeli attacks. The last time Israel provoked Iran back in April by killing senior Hezbollah officials in Damascus, the Iranians chose a relatively calibrated response. According to The Economist:
“Iran has struck Israel directly once before: it launched more than 300 missiles and drones at Israel in April, retaliation for an Israeli strike that killed several high-ranking officers at Iran’s embassy compound in Damascus. Israel hit back with a pinpoint strike on an Iranian anti-aircraft radar, and the round was over.
“This time, Iran will have to decide whether it can risk a bigger conflagration. It is going through a sensitive political moment. Mr Haniyeh was killed hours after he attended the inauguration of Masoud Pezeshkian, the new Iranian president, who was elected after his predecessor was killed in a helicopter crash in May. This was probably not how he envisioned his first day on the job.”
The calibrated Iranian response was also blunted by a coalition of forces in the region to shoot down most of the missiles fired from Iran. The Center for Strategic and International Studies assessed the missile defense effort:
“This episode represents an outstanding success story for air and missile defense. Despite the over 300 ballistic missiles, drones, and cruise missiles launched, there appears to have been minimal damage to Israeli infrastructure and military assets, and the attack resulted in only one Israeli casualty.
It was also a joint effort. The coalition was led by the United States and featured the United Kingdom, France, and Jordan, in addition to Israel. Coordination took place at the Combined Air Operations Center at Al Udeid Air Base in Qatar, which helped to prevent any friendly fire incidents. Although Saudi Arabia has denied direct involvement, the kingdom at least allowed U.S. aircraft stationed in the country to engage Iranian air threats. Israel’s Arab neighbors also may have contributed intelligence and sensor assets to detect and track Iranian air threats, although the extent of this cooperation remains unclear. U.S. policymakers have long advocated for an integrated missile defense in the region, and this joint operation helps illustrate why.”
The Iranian government thus has to decide what an “appropriate” response should be, but it needs to take into account the lessons of the earlier April attack and try to overwhelm the missile defense capabilities of Israel and the US-led coalition. I do not have the technical expertise to speculate on what that number of missiles might be, and I suspect that the US will try to shoot down as many of those missiles as it can which is also a number I do not know.
But there is a more important insight to gain from the April attack. The US and the coalition of allies offering missile defenses are providing a shield which insulates Israel from any real consequences to its actions. That course if action is unwise since it allows the Netanyahu government to take actions which have negatively affected the US, Israel, and the Palestinian people.
The Copernicus Climate Change Service, the climate change organization connected to the European Union, released data today that indicated that “…Sunday 21 July was the hottest day since at least 1940, by a small margin of 0.01ºC. While it is almost indistinguishable from the previous record, what really stands out is the difference between the temperatures since July 2023 and all previous years.”
“Prof Peter Thorne, director of the Icarus centre at Maynooth University, Ireland, and a coauthor of an IPCC report that found humanity was responsible for all of the observed rise in temperatures since the 1850s, said Sunday’s record might one day be seen as ‘anomalously cool’ if the world did not rapidly reach net zero emissions.
“’Just a quick glance at the range of events happening around the globe right now – wildfires, flooding, heatwaves – tells us that we are not remotely prepared for the extremes that this warmer world has bought us,’ he said. ‘We are even less prepared for what is to come.’”
There has been substantial progress in developing sources of energy that do not rely on fossil fuels, but the world has not yet made significant progress in reducing the emissions of greenhouse gases.
There must be a more concerted effort to change these trends. Political will remains a rhetorical device. Citizens must begin to assert the need for more effective action.
Yesterday, the Israeli Knesset declared that the creation of a Palestinian states would “pose an existential danger to the State of Israel.” The vote was 68 to 9 out of a possible 120 votes, and the fact that 43 members did not votes is intriguing, and perhaps, telling. The vote was held just as Prime Minister Netanyahu is scheduled to deliver an address to the US Congress next Wednesday, 24 July. Since US President Biden has repeatedly held that the creastion of a Palestinian state is necessary for peace between the Israelis and the Palestinians, the vote was intended to undermine the US position. To further indicate the growing distance between the US and the Netanyahu government, the Israeli national security ministar, Itamar Ben-Gvir, prayed at the al-Aqsa mosque compound, stating that he had prayed for the Israeli government to not sign a cease-fire agreement over Gaza.
Today, however, the International COurt of Justice relieased its findings in a Advisory Position which was requested by the UN General Assembly in 2022. The decision, “Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem“, forcefully reiterated previous legal findings that the Israeli occupation of the Gaza Strip, the Golan Heights, and the West Bank, territories seized by Israel in the war of 1967, violated both the Geneva and Hague Conventions on occupied territories:
“Conclusion on Israel’s settlement policy
155. In light of the above, the Court reaffirms that the Israeli settlements in the West Bank and East Jerusalem, and the régime associated with them, have been established and are being maintained in violation of international law (see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 184, para. 120).
“156. The Court notes with grave concern reports that Israel’s settlement policy has been expanding since the Court’s Wall Advisory Opinion. In particular, in December 2022 Israel’s parliament approved the establishment of an additional minister within the Ministry of Defence vested with governing powers in the West Bank, including land designations, planning and co-ordination of demolitions, which would expedite the approval process for new settlements. Also, the size of existing Israeli settlements expanded from 1 November 2022 to 31 October 2023 at a significant rate, with approximately 24,300 housing units within existing Israeli settlements in the West Bank being advanced or approved, including approximately 9,670 in East Jerusalem (“Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan: Report of the United Nations High Commissioner for Human Rights”, UN doc. A/HRC/55/72 (1 February 2024), paras. 7 and 10).” (p. 47)
“On July 19th the International Court of Justice (icj) rejected all of Israel’s legal claims in response to a request for a legal opinion by the United Nations General Assembly. In a series of coruscating majority rulings, it said that Israel’s prolonged presence can no longer be considered a temporary military occupation, but amounts to illegal annexation that undermines the rights of the Palestinians living there to self-determination. It said the occupation, ‘transfer by Israeli of settlers to the West Bank and Jerusalem’ and ‘forced displacement’ of Palestinians are clear breaches of international law. The bottom line, according to the judges, is that ‘Israel’s continued presence in the Occupied Palestinian Territory is unlawful’ and that the Jewish state is ‘under an obligation to cease immediately all new settlement activities’ and evacuate the settlers already there.
“’Successive Israeli governments have treated the settlements, as well as Israeli control over the area, as an immovable fact on the ground and not even made a pretence of negotiating with the Palestinians,’ says Eliav Lieblich, a professor of international law at Tel Aviv University. ‘This [ruling] was inevitable.’”
The decision is not enforceable. The International Court of Justice can only refer matters to the UN Security Council, and this is only an Advisory Decision. But there are members of the Security Council who would not be willing to even entertain an enforcement resolution. Nonetheless, the decision further isolates Israel and its allies from the vast majority of the states in the United Nations. Currently, 145 of the 193 member states in the UN recognize an independent Palestinian state.
What is most inrtiguing about the decision is that the preferred position of the US on the Israeli-Palestdinian question is that the only possible resolution lies in the creation of an independent Palestine. But the US insists that such an outcome needs to be negotiated and not imposed. The Israeli occupation has lasted for 57 years, and there have been numerous negotiations over those years which have had no discernable effect toward any effective resolution. There is no reason to believe that further negotiations will yield different outcomes. Israeli Prime Minister Netanyahu released this statement after the Court’s decision: “The Jewish people are not occupiers in their own land, including in our eternal capital Jerusalem nor in Judea and Samaria, our historical homeland. No absurd opinion in The Hague can deny this historical truth or the legal right of Israelis to live in their own communities in our ancestral home.”
The time has long past for the US to indulge the fantasy of negotiations. The International Court of Justice has created an opportunity for the US to change its position.
The decision of the Supreme Court on the matter of Trump vs. United States today was a profound disappointment. It offered little on the critical question of whether Mr. Trump’s actions within the Justice Department were official or unofficial acts. Those actions involved replacing certain members of the Justice Department with a new Attorney General (Jeffrey Clark) who wanted to write a letter to various state legislatures suggesting that there were irregularities in the votes cast in the 2020 election which would justify the naming of alternate Electors. The Washington, DC Bar Association moved to disbar Mr. Clark because of these actions, noting that
“‘We must do what we can to ensure that this conduct is never repeated. The way to accomplish that goal is to remove from the profession lawyers who betrayed their constitutional obligations and their country. It is important that other lawyers who might be tempted to engage in similar misconduct be aware that doing so will cost them their privilege to practice law. It is also important for the courts and the legal profession to state clearly that the ends do not justify the means; that process matters; and that this is a society of laws, not men,’ wrote disciplinary counsel Hamilton Fox III. ‘Jeffrey Clark betrayed his oath to support the Constitution of the United States of America. He is not fit to be a member of the District of Columbia Bar.’”
Apparently, the US Supreme Court thinks that Mr. Clark’s behavior fell within the scope of Presidential authority. The majority decision held that
“The indictment’s allegations that the requested investigations were shams or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial func- tions of the Justice Department and its officials. Because the President cannot be prosecuted for conduct within his exclusive constitutional authority, Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”
Additionally, the Special Prosecutor, Mr. Smith, charged that Mr. Trump tried to improperly influence the actions of the Vice-President, Mr. Pence, to delay the certification of Electoral votes. The Supreme Court held that “The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.”
Critical to both of these findings is the curious statement by the Supreme Court that
“In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such a ‘highly intrusive’ inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose. Fitzgerald, 457 U. S., at 756. Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law. Otherwise, Presidents would be subject to trial on ‘every allegation that an action was unlawful,’ depriving immunity of its intended effect.”
These presumptions are bullshit. Essentially the Court is holding that subverting a valid electoral outcome is not unconstitutional as long as the subversion is done by the President and anyone who serves under the authority of the Executive Branch. By refusing to examine the motivations for the action, the Court is saying that replacing the appointed Attorney General with someone who would subvert the Electoral College was normal activity within the Justice Department. No one questions whether the President had the authority to name a new Attorney General; the only relevant question is whether that action contitutes a crime against the Constitution.
On this question, the Court punts:
“On Trump’s view, the alleged conduct qualifies as official because it was undertaken to ensure the integrity and proper administration of the federal election. As the Government sees it, however, Trump can point to no plausible source of authority enabling the President to take such actions. Determining whose characterization may be correct, and with respect to which conduct, requires a fact-specific analysis of the indictment’s extensive and interrelated allegations. The Court accordingly remands to the District Court to determine in the first instance whether Trump’s conduct in this area qualifies as official or unofficial.”
In this paragraph, the Court contradicts itself. Having said that an inquiry into the motives of the President are not permissable, the Court ends up holding that whether Mr. Trump was taking action to “ensure the integrity and proper administration of the federal election” is something that needs to be determined. The Court apparently believe that the motive of ensuring the integrity and proper administration of the federal election is both legitimate and appropriate.
Now the lower courts have to make such a determination. But is there any reason to think that the Supreme Court lacked the ability to make such a determination? Did this decision require more evidence as to whether Mr. Trump’s actions were motivated by his strong desire for a legitimate election outcome? The Court wanted to assure that future Presidents are not paralyzed by the fear of prosecution for official acts. But it now appears that the Court wants lower courts to make such decisions on a case-by-case basis. Future Presidents may not be “paralyzed” by threats to prosecute. However, they will undoubtedly be hamstrung by the Supreme Court’s invitation to anyone who differs on the meaning of an “official act” to sue in the lower courts. It has released the Kraken.
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