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Federalist Society co-founder Professor Steven Calabresi took to the pages of the Volokh Conspiracy — the internet’s showcase for libertarian academic takes and bribery rationalization — to advise former president Donald Trump not to take the stand in the New York hush money case. As legal advice goes, this is about as sound as it gets. Trump can’t really deny the affair or the payoff or that this was done in furtherance of his campaign. At not least without perjuring himself. He’s also not particularly likable and prone to nonsensical, ranting diversions because he is, you know, in the midst of apparent mental decline. It is, after all, the advice that Trump’s smarter — and by extension “former” — attorneys are giving.
So why are so many people worried about Calabresi?
Oh. I see. It’s the correct legal advice, but sort of like saying “you should brush your teeth twice a day… to remove the NANOBOTS THE CIA IMPLANTS ON YOUR GUMS TO KEEP BIGFOOT INVISIBLE!!!”
Calabresi has walked this line for a while now, having previously argued — at Volokh Conspiracy — that bribery is fine if you grew up poor and that the Trump Organization financial fraud trial violates the Eighth Amendment. As these scorching hot takes pile up, folks have suggested that Calabresi’s friends step in and prevent him from further embarrassment:
But… what embarrassment? This is an utterly unhinged, conspiracy theory-driven diatribe, but is it any different than Jonathan Turley’s routine appearances on Fox?
Staying on the pages of Volokh Conspiracy, it just published Josh Blackman’s defense of Sam Alito flying the flag upside down, arguing that he (or his wife) did NOT intend to show their insurrectionist sympathies but “as a symbol of distress to clap back at her neighbors,” begging the question how this would be a “clap back” unless it WAS intended as alt-right semaphore. Is Calabresi’s post any more batshit loony than Blackman’s inability to get through a sentence without undermining his own argument?
What exactly did Calabresi say?
Any conviction obtained at the so-called “trial” of former President Donald Trump’s alleged alteration of financial records will be reversed on appeal, if necessary by the U.S. Supreme Court, because altering financial records is only a crime in New York if you do it to conceal some other crime. Paying Stormy Daniels money is NOT a crime.
That’s… not necessarily wrong. There are arguments both ways, but I actually agree that paying off Stormy Daniels can’t be an improper donation circumventing campaign finance laws if for no other reason than the fact that using campaign funds to pay off Daniels would’ve itself been a campaign finance violation.
The purpose of this whole case was just to give Daniels a megaphone to blast her allegations into nationwide. It is an outrage that the District Attorney brought this case and that the judge did not declare a mistrial.
Assuming arguendo that the trial court is right that this would amount to a campaign finance crime then there’s really no reason to declare a mistrial. It was TRUMP who had his lawyers use the opening to casually impeach Daniels by suggesting the affair was made up — that legitimately opened the door to all the testimony that the defense would later whine about. So Calabresi’s point is stupid but, again, not out of line with mainstream conservative commentary.
Calabresi then compared Trump to disgraced former National Security Advisor Michael Flynn, claiming that Flynn was “indicted and kicked out of the White House” for giving a “truthful deposition” to Robert Mueller. In fact, Flynn was indicted for lying to the FBI long before the Mueller investigation — something Flynn pleaded guilty to doing twice.
So this is flat wrong. But also, conservative legal commentary has pushed the idea that Flynn didn’t really do what Flynn admitted he did for years now. Flynn himself filed a lawsuit for malicious prosecution despite two allocutions.
The point is, there’s nothing about this post that seems particularly out of step with prevailing right-wing talking points. Sure Calabresi went from suggesting Trump should be impeached to sycophantically regurgitating his wildest Truth Social claims, but it’s a mistake to lament this as one individual’s descent into the weird.
This is a feature not a bug of the conservative legal movement. Oh, a prominent conservative has fallen for facially false claims in right-wing media? This is a legal philosophy that runs on cherry-picking expeditions through partisan 19th century newspapers! If someone crafts their worldview around reverse engineering to meet their prior policy preferences with no regard for whether or not the history is even accurate, you can’t really be surprised when they turn up pawning a revisionist history of Michael Flynn’s prosecution to lend a little more support to Trump’s latest grievances. This is how the movement is wired to operate.
And that’s why Calabresi’s screeds — while zany — aren’t really surprising.
Trump Should NOT TESTIFY at MANHATTAN WITCH HUNT OF A TRIAL [Volokh Conspiracy]
Earlier: Clarence Thomas Can Take Bribes Because He Grew Up Poor, Declares Professor
FedSoc Founder Calls Trump Verdict ‘Kafkaesque’ In Case You Missed The Part Where Josef K. Used Multiple Valuations To Defraud Lenders & Insurers
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
