Reader comment on a thread about the high-profile lawyers who aren’t yet interested in filing the kinds of cases I write about:
Opinion only question: Why do you think they're sitting on their hands? Don't want to rock the governmental boat? Afraid they'll lose? Lazy? --- My personal opinion about Kennedy is fear. He's got cajones, but doesn't want to suffer his father's fate.
My reply, slightly revised:
All those things are part of it I’m sure.
But my best guess for the main reason, at this point, is that they’re stuck in a cognitive and ethical limbo.
If/when they allow themselves to think through the implications of the already-completed, silent overthrow of the country and the Constitution/rule of law, they can hold onto it briefly.
But the more you think it through, the more overwhelming it becomes to think about how to respond to the predicament.
And the more thoroughly you understand the scale and complexity and recursive nature of the crimes, the more futile it seems to resist.
So, to protect their ability to use the legal frameworks and legal tools that they’re familiar with, thanks to long legal careers, they draw back from processing the overthrow predicament.
In the overthrow scenario, all the legal land ahead is uncharted.
What are the legal mechanisms for the People to restore to power, through the courts and legislatures, the same governing institutions (Congress and federal courts) that have themselves passed and then upheld the laws stripping themselves of power?
It’s similar in structure to the age-old brain teaser: “Can God create a rock so heavy that He can’t lift it?”
Can Congress, as authorized by the US Constitution, pass laws to suspend the US Constitution and its own authority to check and balance the executive and judicial branches?
Can Congress, as authorized by the US Constitution, pass laws to suspend judicial review of executive action?
Can courts refuse to fulfill their obligation under the US Constitution to review executive actions and laws for constitutionality?
The answer is “No, but they’ve done so anyway.”
To which the next, brain-freezing question is, “Then what do we do now?”
How do you remedy a harm that, in principle, couldn’t have happened and that, in practice, the perpetrators (Congress members and judges) don’t admit or possibly even understand they’ve actually done?
I bounce around in that limbo myself quite a bit. As the months pass, I can stay with it longer, and think through possible resolutions to the bind better.
But I still frequently get overcome with a kind of disbelief at the strangeness of it all.