The Evil Charade Continues

Although Donald Trump has yet to be inaugurated to begin what promises to be the most frightening presidential term in American history, two recent developments emphasize just how dangerous the next four years will be.

On January 9, the Supreme Court refused to halt Trump’s sentencing for the thirty-four felony counts on which he was convicted in New York State. The Court rejected his argument that, “as president-elect, he is entitled to immunity from criminal proceedings,” and that “prosecutors had improperly relied on evidence of his official acts—such as his posts on the social-media platform X, then known as Twitter—to obtain his convictions.”

The decision should have been obvious. As the Court asserted so forcefully in Dobbs, the federal government has egregiously overreached in encroaching on authority that should be under the purview of the states. Abortion, as Samuel Alito pointed out, was in no way guaranteed by any Constitutional provision as a federal right. The Tenth Amendment, after all, reserved any power not specifically assigned to the federal government to the states or to the people. As the conservative justices regularly proclaimed in high dudgeon, separation of state and federal supremacy was a cornerstone of the American system of government, and it was high time that Washington stopped dictating policy that should be implemented state by state.

Trump’s case seemed a natural extension of that reasoning. For proof, one need only look at the presidential pardons clause in Article II, Section 2. No president has the right to issue a pardon for any crime tried in state court, as Trump’s clearly were. Still, pundits on both sides wondered if the conservative justices would adhere to (in theory) their own principles in a case this self-evident.

Two did…but four did not.

Not content to give Donald Trump immunity from “political acts” committed while in office, a definition already ridiculously broad, Justices Thomas, Alito, Gorsuch, and Kavanaugh voted to effectively extend that immunity to non-political acts committed while not in office. It was not as if Trump’s challenge presented the legal conundrum of potentially requiring a president to hold office while in jail—the trial judge had already announced the sentence would be…nothing. No, this was more than a get-out-of-jail-free card—this was a “you-can-do-anything-you-want-and-we’ll-find-some-way-to-justify-it” card, the very epitome of wink-and-nod law.

If Americans needed any further proof that our system of justice has become a charade and the Constitution has been reduced to scrap paper—which they should not—this was it.

The second example was equally telling but more nuanced. Republican leaders in Congress announced that they would only agree to grant billions in federal aid to help victims of the horrific fires in California if “certain conditions were met,” including changes in land management and tax policy, although they were unclear as to what the second of those entailed.

With land management, however, they had a point. The fires themselves were tragic enough—what made them more so was that much of the terrible devastation might have been prevented.

For decades, two experts, Jack Cohen and Stephen Pyne, tried to make clear that the wildfires that burned houses to the ground and melted automobiles down to the frames did not spread as was commonly thought—by walls of flame moving inexorably forward, devouring everything in their path—but rather by embers sailing through the air and landing on roofs, flammable substances, and vulnerable vegetation sometimes miles ahead of the active fire.

Given that phenomenon, the spread of wildfires in residential areas could be lessened by certain common-sense measures, including creating buffers around houses, using fire resistant roofing and building materials, and attacking embers before they could spread. Six years ago, Cohen even visited Pacific Palisades to urge homeowners and firefighters to adopt his recommendations, but he was largely ignored.

He should not have been. There were incidents with these fires where just the strategy he and Pyne advocated left structures untouched literally in the center of the flames.

One was the Getty Villa, a museum that took extraordinary measures to safeguard its priceless art collection. They cleared virtually all flammable vegetation, constructed the galleries with double walls, used only fire suppressing materials, had extremely sophisticated air filtration, and employed many other features beyond the reach of most homeowners—but not uber-rich Hollywood celebrities and other supremely wealthy residents of Pacific Palisades and nearby enclaves. As a result, the Getty Villa was saved while the celebrity homes were not.

But there were also examples of “ordinary people” achieving the same result. In Altadena, a man saved his home and seven others using nothing but garden hoses. Every time a flying ember hit a roof or a fence, he doused it. These homes did not have vegetation near the structures so he could deal with tiny flare-ups before they got out of control or spread to the a nearby oak tree, which, if it ignited, would have been beyond his ability to control. He patrolled his neighborhood until the fires had passed by. The water pressure had dropped by then but he was able to deal with any remaining hot spots using tap water.

With similar home rescues, in every case, as with the Getty Villa, there was no vegetation close enough to the house to overwhelm any effort to control the flames. In some instances but not all, the homes had been built with fire resistant materials. Those individual rescuers were without question lucky not to have burned to death—as others who refused to leave did—but it seems clear that a similar approach community-wide might have spared many homes and limited the loss of life and property. (There are many other stories of homeowners of intelligently built homes who fled and returned to find their houses intact. Fire Resistant Home Survives )

The lesson, of course, is that while the threat of fires running out of control can never be eliminated, California building codes, among the most persnickety in the nation, have ignored one of the most serious threats. To date, although the California Department of Forestry and Fire Protection is “encouraging” homeowners and builders to “harden” homes against fires, there is no requirement that they do so. Nor is there a requirement that new homes or renovations adhere to strict fire suppression standards.

This is idiocy.

And so, California gave Congressional Republicans the opportunity to sound reasonable—but that does not mean their outrage was not also a charade. Never before in response to a natural disaster was aid to victims contingent on the behavior of state or local governments, and it certainly would not be now if Alabama or Missouri or Texas or Florida created such a situation through negligence or some other self-inflicted wound.

There are many charades currently being played out in Washington but when one reduces the rule of law to snickering and another justifies government by cruelty, the full sad, monstrous impact of Donald Trump’s election becomes clear.