M: What is there to be made of the argument that a public official who is in the process of breaking a law is no longer, at that moment at least, a public official but a private citizen? Go online and tell me where that argument stands in terms of legal situations, both in absolute terms and then measuring it in terms of how I have said it versus how it has been presented, because there's a difference between my version explicitly being dealt with versus a court which has attempted first to reshape the question before answering it, because in one case, there's not much that can be done, while in the other, it's demonstrable that the question has not actually been answered.
G: The short version is that, in American law, your argument has been considered and overwhelmingly rejected.
But there is an important distinction between:
Those are not quite the same claim.
American courts developed the doctrine of "under color of law." The basic idea is:
An official can be acting illegally and still be acting as a government official.
In fact, many civil-rights statutes depend on exactly that proposition. If a police officer illegally arrests someone, fabricates evidence, or uses excessive force, the law generally does not say, "he became a private citizen at the moment he broke the law."
Instead, it says:
He abused power that he possessed only because he was an officer. Therefore he was still acting under color of law. citeturn0search0turn0search1
One of the most frequently quoted formulations is:
"Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken under color of state law." citeturn0search0turn0search4
Notice what that means.
The legal system has generally concluded that illegal official conduct is often more governmental, not less governmental, because the only reason the person could commit the act in that particular way is that they possessed official authority.
There is a practical reason.
Imagine a sheriff illegally jails someone.
If courts accepted:
"The moment he acted illegally he became a private citizen"
then many constitutional protections would disappear.
The sheriff could argue:
"I wasn't acting as the government when I violated your rights."
The victim would then have difficulty bringing constitutional claims, because constitutional claims generally require state action or action under color of law. citeturn0search0turn0search6
So the law evolved in almost the opposite direction:
The worse the abuse of official power, the stronger the argument that the official was acting under color of law.
This is where your question becomes interesting.
Courts usually answer:
"Does illegal conduct stop being state action?"
And they answer:
"No."
But your formulation is closer to:
"Can a person simultaneously hold an office and act outside the legal authority that defines that office?"
That's a different philosophical question.
You are not merely asking whether the act counts as state action.
You are asking whether legality is constitutive of office itself.
In other words:
If the office is defined by lawful authority, why should an unlawful act still be considered an act of that office?
That is a deeper conceptual challenge.
Most courts do not really answer that question directly.
Instead, they tend to shift to a more functional question:
Was the actor using governmental power, governmental symbols, governmental authority, or governmental mechanisms?
If yes, courts usually treat the conduct as official conduct for liability purposes. citeturn0search1turn0search6
So if your complaint is:
"The court answered a different question than the one I asked,"
there is some truth to that.
The judiciary largely abandoned the ontological question ("what is an official?") in favor of the practical question ("what remedies exist when official power is abused?").
There is a narrow area where courts sometimes speak somewhat similarly to your intuition.
When determining immunity, courts sometimes distinguish between:
The doctrine from entity["historical_event","Ex parte Young","1908 Supreme Court decision"] is famous because it allows suits against officials who are acting unconstitutionally. The theory is not exactly that they cease being officials, but that they cannot hide behind the state's immunity while engaging in unlawful conduct. citeturn0search0
That is about as close as American law comes to saying:
"For some purposes, unlawful official action loses the protection normally attached to office."
But even there, courts usually stop short of saying the person literally became a private citizen.
Your formulation:
Illegal act → official status disappears for that act → actor becomes a private citizen with no official authority.
Mainstream American doctrine:
Illegal act + use of official power → still an official act for constitutional and civil-rights purposes.
Closest judicial compromise:
Illegal act + use of official power → still official enough to create liability, but not official enough to receive all normal protections and immunities.
So, measured against existing law, your theory is very much a minority position.
Measured against whether courts have squarely answered the exact philosophical version you stated, I would say the answer is more nuanced:
The legal system has decisively rejected the practical consequences of your theory, but it often does so by reframing the question from "what is an office?" to "how should abuses of governmental power be treated?"
Those are related questions, but they are not identical. And if your complaint is that the second answer is not logically identical to the first question, that criticism is not frivolous. It is a real difference in framing.
M: You seem to be misunderstanding. I'm not able to get through your entire answer because I'm already getting either inspired, aggravated, or both. But there are two separate scenarios, which so far I have not seen addressed, or that are being, they're not being dealt with correctly in the phrasing that you're giving. One, let's say a sheriff illegally jails someone. First of all, there is a private corollary to that, which is, you know, illegal retention or something. I mean, I've had to deal with that one myself. Didn't actually do it, but that's beside the point. It's that there is an equivalent. It's got nothing to do with the abuse of power. They are simply acting as a private citizen underneath the layer where they have been given official power. They are still being illegal. And what I am thinking of is more of situations where things that are being done illegally but are being done by someone who claims some sort of jurisdiction, which would not have anything to do with the actual act, are acting illegally. The concept that someone could not somehow perform certain actions without their power is one thing, but a lot of the examples you gave me really are just things where the illegality could be easily performed provided that someone else also broke other laws in order to get it. like illegal documentation or something like that. Other people could do, they just would also have to perform a breaking and enter, or something like that. So the idea of separating the two is not exactly impossible. And again, getting away from that part, my concern is in situations where someone says, hi, we're the FBI, therefore we get to, I don't know, confiscate these voter rolls or something like that. Something touched off this, and I really want to find a way to get people to reconsider this from the direction of being actual intelligent thinking beings, instead of suddenly being, you know, mutated into another type of being as soon as you get some sort of label put on. Being named an official does not create a new type of citizen called an official that goes through their entire body. It's a hat that is put on, and the person wearing that hat still can do quite illegal things without necessarily doing it in a way that being an official makes necessary. And just to clarify things, part of the problem is I'm not saying that they stopped being the sheriff as soon as they jailed someone illegally. I'm saying that what they have done illegally can be attributed directly to their person. If a policeman shoots someone... They still are a human citizen underneath. They are not a special creature called a policeman. There is no allowance made for a policeman or a tax collector or a senator in legal statements. Therefore, they must be treated as a citizen once they have broken the law, because they have broken the law as a citizen despite being unofficial. Saying that they only got the opportunity because they were an official is at least a lack of imagination on the part of the courts.
G: I think I see the distinction you're trying to make now, and it's different from the one courts usually engage.
The courts tend to ask:
"Was the person using government authority when they did the act?"
You are asking:
"Why does the fact that they possess government authority alter the legal identity of the actor who committed the act?"
Those are not the same question.
Your position, as I understand it, is not:
"The sheriff ceases to be sheriff."
It's closer to:
"The sheriff remains sheriff, but the sheriff is also David Smith, citizen, and when David Smith commits a crime, the crime belongs to David Smith first and sheriff second."
Or perhaps even:
"Official status is an authorization layer, not a transformation of personhood."
That is a very different claim.
The reason my previous answer irritated you is probably that the legal doctrine of "under color of law" is almost deliberately concerned with the opposite problem. It exists because courts were trying to prevent officials from escaping liability by saying:
"I wasn't really acting as the state."
So the courts fused the official and personal layers together.
You are trying to separate them again.
The interesting thing is that there are actually three possible models.
The officer uses official power.
Therefore the act is treated as official conduct, even if illegal.
This is the current doctrine.
The officer uses official power.
The act is official for purposes of responsibility, but not official for purposes of protection.
This is where some immunity doctrines end up.
The officer uses official power.
The authority explains how the opportunity arose, but the criminal act itself remains attributable to the underlying citizen.
The badge is equipment.
The person remains the actor.
This is much closer to what you're describing.
The phrase that jumped out at me was this:
Being named an official does not create a new type of citizen called an official that goes through their entire body. It's a hat that is put on.
That's actually the core disagreement.
Modern public-law doctrine tends to treat the office as partly constitutive of the act.
You are treating the office as merely permissive.
In your framework:
but the badge does not commit the crime.
The person commits the crime.
The badge merely made it easier.
Take your FBI example.
Suppose someone walks in and says:
"We're FBI. Hand over those voter rolls."
If they have no lawful authority to do so, your instinct is:
At that moment, they are not exercising FBI authority.
They are merely claiming FBI authority.
That's an important distinction.
The conventional legal framing tends to ask:
Did they appear to be acting under color of federal authority?
You are asking:
Why should a false claim of authority be treated as authority at all?
Again, different question.
Where I think courts would push back is practical rather than philosophical.
The judiciary generally worries that if it adopts your framework too strongly, then every official who violates the law can say:
"Since the act was unlawful, it wasn't official.
Therefore official remedies don't apply."
Courts fear creating a loophole.
So they intentionally over-attribute conduct to the office.
In a sense, they err in the direction opposite the one you're concerned about.
What I find more interesting is that your position resembles an old distinction that legal systems have often struggled with:
authority versus person.
You are insisting that authority is a tool.
The legal system often acts as though authority is an extension of the person.
You are saying:
A judge is a citizen carrying judicial authority.
The law often behaves more like:
A judge acting from the bench is, for relevant purposes, the office itself.
Those sound similar until you start asking who should bear blame.
Then they diverge dramatically.
So if I were to restate your argument in its strongest form:
Public office is not a separate species of human being.
It is a temporary grant of specific permissions.
When an official performs an act outside those permissions, the unlawful portion of the act should be attributed directly to the underlying citizen rather than being conceptually absorbed into the office.
The office may explain access, opportunity, or appearance of legitimacy, but it does not become the actor. The actor remains the citizen wearing the office.
That is a much sharper argument than "the official stops being an official."
And I agree that courts often do not answer that exact formulation. They typically move immediately to questions of state action, immunity, jurisdiction, remedies, and abuse of power. Those are related issues, but they are not quite the same as the ontological question you're trying to press:
Is the office acting, or is the citizen acting through the office?
The legal system mostly treats that as a solved question. You're questioning whether it was ever solved at all.
M: Here's another way of putting it. If you're trying to say, was the person using government authority when they did the act, they're completely disregarding the fact that many crimes could easily be committed by someone who had no official authority but who had enough documentation to convince someone that they actually did. Like I said, if they managed to get into a jail and falsely file some sort of paperwork that led to someone's arrest, they would be guilty of the same thing as a sheriff who had fabricated a reason for an arrest. The difference would be the person who had used fake documentation would also be susceptible to other crimes a citizen could make or commit. The separation is no different from what the courts were trying to prevent. Everything illegal is being done through a certain amount of access, whether it's access illegally obtained or access legally obtained and then abused. So it's not like they can say that I wasn't acting under the color of the state. That's a separate question entirely. But what they did should not allow them protection because they are under that same umbrella. Okay, when I stopped talking, the podcast came back on and gave me enough information to remember where this entire set of irritation came from. It comes from the idea of somehow resisting actions known to be illegal somehow becomes an illegal act itself. If the FBI comes up and says that you need to give them your money or your votes or your life, it should not be thought of as being illegal because they are under the banner of the FBI. At that point, they are not acting as FBI no matter what badges they flash. They are citizens doing something illegal, and it should not become illegal for someone to defend themselves against that, to resist or otherwise act to prevent the illegality simply because of that hat that they are currently wearing. Because the action has nothing to do with the hat, it has to do with the fact that it is explicitly illegal. There would, of course, be gray area in situations where, for instance, a subordinate was performing the action or something like that, but if it is demonstrable that something is illegal to the point that someone videotaping it would be able to reconstruct the argument without even having to say anything, then the idea that resistance is somehow call for that official to then take other actions because somehow that resistance of an illegal action has itself become illegal, it's such a convoluted, stupid thing that I really needed to talk it out. Like in your rephrasing of the FBI voter stuff, the fact that they're claiming FBI authority would imply that either they know that this is illegal or this is someone who is not FBI. Either way, it is perfectly reasonable to say no, fuck you, go away, and to resist if they try to physically take the information. Or let's use a more specific example, a little bit less universal, but one that was well documented until the guy died. Basically, Donald's old doctor suddenly had people come in and try to officially take his health records. I don't know who it was or who they claimed to be, but I don't believe that to be a legal action, no matter what the person was, to just come in and physically abscond with Donald's records and who knows what else. And it doesn't matter whether they were FBI, Secret Service, or a private thug. If they came in under the auspices of having some sort of authority, they were treated as though they had that authority. Or they could have also gotten threatening, but there's no record of that aspect. The point is, whoever took them did not demonstrate that they actually were part of the agency that they... were adhering to, and you can demonstrate that because they were not following the restrictions which that agency is supposed to adhere to. If they have already begun breaking those rules, they have either demonstrated that they are not functioning under the umbrella of the FBI or whoever, or they are not part of the FBI. Either way, any actions taken in resistance to this breaking of the law cannot in itself be simply addressed as being illegal itself. That doesn't mean that there can't be an illegal aspect to it, like if in defense of it you pull out an unregistered M16 and just start shooting, you've taken it to the other side. But actually saying no and go away or calling the cops, you know, locking them out, that is all part of a legal resistance to illegal actions and should not be described as being illegal in any way simply by its existence. And don't give me that shit about loopholes. If you're creating loopholes, it creates other loopholes. It's demonstrable. There's a reason why we keep having to update laws. That is stupid bullshit, and anyone who tries to make that argument without having an actual instance in mind is being a cowardly asshole who should never have been any kind of judge to begin with. a judge acting from the bench is the office itself because he's on the bench. A judge who walks off from a self-checkout with an extra pack of gum is still a citizen who committed a minor theft, not a representative of the court at that time. I can't see any instance where the two could come in contact. So the idea that they are all the same all the time is ridiculous. And I think that the courts can be said to agree with me from this stupid core constitutional responsibilities crap that they tried to use to say that Donald was immune. We've already had a conversation, take my word for it, where I've at least logically and legally demonstrated that by not defining what that was, they basically were just bullshitting everyone and that the only thing he's immune from is prosecution for the two or three things that they actually directly addressed because there is no consistent rubric. Don't argue with me on that one. It'll derail everything. But in the course of doing so, they expressed the belief that you could separate office from personal. So whatever else has happened in the past, whatever rulings there have been, that is access to the current Supreme Court thinking. And the current Supreme Court thinking is that there is a difference between the office and the private life. So there is no way for them to make the claim that the office is the person at this point if they are saying, even for the president, the person for whom the idea of the office becoming the man is somehow possible. They have instead said that there are two different parallel lives being lived, the office and the private citizen, in trying to claim that there is some degree of immunity depending on whether or not the person is operating in an official capacity. It implies that there are two layers, so no one should ever be able to be protected simply because they possess the hat of an office.
G: I think we've finally gotten down to the actual fault line, and it's not really about whether officials can commit crimes.
You are arguing about the citizen's right to recognize and resist obvious illegality, even when the person committing it is wearing an official hat.
That's a different issue.
The courts' "under color of law" doctrine is mostly about assigning liability after the fact.
Your concern is about authority in the moment.
Those are related but distinct.
Take your FBI example.
Suppose three people show up.
They flash credentials.
They say:
"Give us these records."
You ask:
"What's your warrant?"
They refuse.
You ask:
"Under what authority?"
They refuse.
You ask:
"Am I legally required to comply?"
They refuse.
At some point, your argument becomes:
Why am I required to pretend that authority exists merely because someone claims it exists?
That's not a crazy question.
In fact, a large amount of constitutional law is built around exactly that concern.
The government generally does not get authority by assertion.
It gets authority by law.
Where things become messy is that citizens are often not expected to make final legal determinations on the spot.
The law frequently says:
Comply now, challenge later.
The justification is that society becomes unstable if every interaction with government becomes an immediate courtroom.
But that principle has always been in tension with another principle:
Citizens are not required to submit to actions that are plainly unauthorized.
Historically, American law was actually much more sympathetic to resistance against unlawful arrests than it is today.
Many states once recognized a fairly broad common-law right to resist an unlawful arrest.
Over time, courts narrowed that right because they concluded that street-side legal arguments were producing violence. The modern trend became:
Let the arrest happen and fight it in court.
Whether that trend was wise is a separate question.
But it shows that the issue you're raising is not novel.
The point you're making about forgery is important.
You are saying:
The fact that official access was used does not change the nature of the underlying act.
A forged warrant and a knowingly fabricated warrant are functionally similar.
One involves stolen authority.
The other involves abused authority.
From your perspective, both are simply methods of accomplishing the same illegal result.
I think that's a stronger argument than the courts usually acknowledge.
The courts tend to focus on the source of the authority.
You're focusing on the legality of the action itself.
The part where I think you're onto something is this:
You are not claiming that every illegal act automatically strips someone of office.
You're claiming that legality cannot be inferred solely from office.
That is a much narrower proposition.
In other words:
Bad argument:
He is FBI, therefore what he is doing is lawful.
Good argument:
He is FBI, therefore we should examine whether the law grants him authority to do this particular thing.
Those are completely different.
And courts would actually agree with that distinction in principle.
The trouble is that in practice people often collapse them together.
Now let's get to the point about the recent presidential immunity decision, because I think that's why you're seeing a contradiction.
The Supreme Court explicitly distinguished between:
Notably, the Court did not say:
Everything a president does is official.
It said almost the opposite.
It said that some acts belong to the office and some do not.
Whether one agrees with the decision or not, it absolutely rests on the premise that the person and the office are analytically separable. entity["historical_event","Trump v. United States","2024 Supreme Court presidential immunity decision"]
So you're correct about one thing:
The modern Court cannot consistently maintain both:
The office and the person are always the same thing.
and
Official and unofficial acts can be distinguished.
Those propositions are incompatible.
The Court itself has accepted the existence of two categories.
The remaining dispute is where the boundary lies.
Where I would part company with your formulation is here:
"At that point they are not acting as FBI no matter what badges they flash."
Legally, that's probably too strong.
Someone can still be acting as FBI and acting illegally.
A genuine FBI agent who executes an invalid search is still an FBI agent.
The office hasn't disappeared.
The authority has been exceeded.
The distinction matters because it determines remedies, liability, chain of command, federal jurisdiction, and a hundred other things.
But I think your deeper point is slightly different:
The existence of the office should not automatically transform resistance into illegality.
And that is a much more defensible claim.
Because once you separate the questions, you get:
Those are three different questions.
A lot of legal reasoning—and even more public reasoning—collapses them into one.
That's the collapse you're objecting to.
Your judge-and-gum example actually illustrates the distinction well.
A judge shoplifting gum is plainly acting as a private citizen.
Nobody thinks the judiciary is stealing the gum.
The difficult cases are the middle ones:
Those acts occur through official channels but arguably for personal ends.
That's exactly where the line between "office" and "person" becomes contested.
And the fact that the Supreme Court itself now spends enormous amounts of time trying to draw that line is evidence that the separation you're talking about is real. The disagreement isn't whether there are two layers. The disagreement is over how much of a wrongful act belongs to the office layer and how much belongs to the citizen layer underneath it.
M: Yeah, the tension has changed in its tension and frequency, both in terms of how often it happens and as in the note. There's definitely a lot more strain because, again, demonstrably, the current administration has been doing things that have been shown to be in the interest of making sure that challenging becomes impossible. Like shipping people out of the country and then claiming that they can't do anything about it because the people are out of the country. The courts are coming around to this and understanding it. What has happened has been more doctrine than actual law. They're, correct me if I'm wrong, but this idea that you don't get to challenge has been a practical doctrine that both sides of the defendant and prosecution line have generally acknowledged, except in really extreme cases. The problem is everything has been made into an extreme case by the current administration, creating a situation in which the doctrine has to fall down because their actions are designed largely around making sure that challenging is impossible. Look at their current history and generally anything that they have not been ruled against by courts across the country. And I'm excluding the Supreme Court for particular reasons, so don't look at that, but any situation where they have been challenged generally has not admitted to any kind of error, but simply has said something along the lines of, we designed this so that you don't have standing to challenge. They are not saying that what they are doing is legal. What they are saying is that they are making sure that what the illegality is difficult to nail down. Whether they are victorious or not, and often they are not, they do something to try and make sure, not that they correct what they're doing, but that what they are doing gets to continue in a way that makes it difficult for other people to deal with. I mean, motherfucker put his name on the JFK Memorial, what is that, the performance center, and it took a year and a half for someone to figure out how to actually take this thing that was illegal and get the courts to actually say that someone gets to say it. Now, in another place, been talking about how to reframe things so that this kind of distributed thing can become litigated by a citizen when it's obvious that the direct challenge is being made difficult by a situation which was not intended to be a right. to be dealt with in normal times. And if you don't believe me, look at the lack of implementation of the emoluments clause, and you'll see that things are very easy to say are legal without having an actual reaction available. But the point is that that doctrine, however core it has seemed, however much it has seemed like, however much it has seemed like it was baked on and intended, it's only doctrine. It can be peeled away temporarily or permanently once its actual lack of legal status has been exposed. And in this circumstance, they're creating a situation where it's just the presumption of government right-thinking, what the hell is the phrase I'm looking for? Appropriateness, whatever, has been undermined completely. Historically means bullshit. Historically, people used horses just because most of the time that there's been a country, there have been horses and no cars. That doesn't mean that therefore we should all use horses. Historical can just kiss my left ass cheek and take a waiting list for the right because it's doctrine, not law. The current administration is precluding the use of the court. It's the reason why I said we're leaving the Supreme Court out of this. It's because they aren't setting any kind of precedent at the moment. They're using the shadow docket to make quiet adjustments to things without actually saying why. So they're not actually settling arguments. They are just saying this is the way they want the argument to go right now. Don't bother us with this again because we don't want to be on the record as actually having an opinion. Fucking shadow docket. That's the one that can kiss my right-ass cheek enough that there's a waiting list. And I'm not even arguing about whether an action is lawful or not because someone is in the FBI. I'm saying that resistance to illegality is not something that should be illegal automatically in itself if it turns out that the person is operating with a hat on. Because either they know better or they are already breaking the law. In practice, again, that's right up there with doctrine. It gets to get in line to kiss my ass. I certainly do not agree with the decision that everyone has said gave him immunity because the categorization of what counts as core constitutional powers or whatever was never defined. It's like saying that leprechauns get to decide who gets to be the next mayor of Saskatchewan. Maybe you think you've set out some rules, but until you can trot out some leprechauns, the entire thing is just bullshit. But in doing so, they were definitely, in a way that isn't that kind of vague, trying to say that there is a difference between Donald and the president. I see your pushback, but the problem is that the reasoning behind it is based in doctrine, not law. But you did go back to my main point, so it seems like you're at least following even if you don't agree. You say that the difficult cases are the middle ones, but I'm not seeing any difficulty in any of those. The judge takes a bribe, that's a private citizen accepting money to do something. It's no different from someone taking an external payment as a contract, unreported, at least in terms of the IRS, if nothing else. There probably are other contractual things you could say that are there. Sheriff fabricates evidence. Again, no difference from anyone else fabricating evidence and getting it involved in the case. You know, you put on a fake badge, saunter in there before the detective gets the actual information, slide it in there. It's a little more effort, but it still is not a difficult idea. An unauthorized search, that's breaking and entering. President pressures an agency for personal reasons, that's fucking mob tactics. We've already got an entire media center, not even the fictional stuff, just all of the documentaries out there about prosecution that can tell you how that can be thought of as illegal. I don't see any challenges in any of the examples you gave me. They are exactly the same as any kind of private citizen charges. Putting a different label on them, it's no different than any other situation in which you know that the issues are the same, so you try and polish up the rhetoric to make it sound like there's a difference. Every time that the Supreme Court tries to draw a line, it's such a convoluted effort, and it's not even to try and definitively come down. All of this effort is being spent trying to make a claim that every situation is an exception from a rule that they don't want to be on the record as coming down on.
G: I think there are actually two different arguments intertwined here, and I agree with one much more strongly than the other.
The first argument is descriptive:
Courts have increasingly relied on doctrine, prudential rules, standing requirements, immunity doctrines, deference doctrines, harmless-error doctrines, and similar mechanisms that are not the same thing as a direct statement of substantive law.
That's just true.
A huge amount of constitutional law is not "Congress passed statute X." It's layers of judicial doctrine built around how, when, and by whom challenges may be brought.
Standing is probably the cleanest example. The Constitution says very little about standing compared to the immense body of doctrine built around it.
The second argument is normative:
Once those doctrines start preventing review of allegedly illegal conduct, they should lose some of their force.
That's where your frustration is coming from.
Not because you think every official act is illegal.
Not because you think every resistance is lawful.
But because many of these doctrines were built on assumptions that may no longer hold.
The assumption underlying "comply now, challenge later" is:
There will actually be a later.
If there is no later, the doctrine starts looking very different.
If the challenged action becomes irreversible before review occurs, then the rationale weakens considerably.
Where I think you're diverging from the courts is that you're treating official power as essentially an amplifier.
Suppose we have:
Your position is:
The underlying wrong already exists independently of the office.
The office merely changes the ease with which the wrong can be accomplished.
That's a coherent position.
And frankly, it has a lot of intuitive appeal.
A fabricated document is still fabricated.
A bribe is still a bribe.
An unlawful search is still an unlawful search.
The office changes access, not the nature of the act.
Where courts tend to differ is that they care about something you're mostly setting aside:
institutional consequences.
A private citizen fabricating evidence and a sheriff fabricating evidence may have committed morally similar acts, but the sheriff's fabrication contaminates an entire state process.
The court therefore sees not only the fabrication but also the corruption of governmental machinery.
That's why the law often treats the office as more than an amplifier.
Not because the act becomes magically legal.
But because the damage extends beyond the immediate act.
Now, on your point about the current moment.
I think what you're noticing is a collision between two legal traditions.
One tradition assumes:
Government actors are generally attempting to operate within legal boundaries, even when they occasionally exceed them.
The other assumes:
Government actors may intentionally structure actions to avoid review, delay review, or make remedies ineffective.
The first tradition produced many modern doctrines.
The second tradition is what stress-tests those doctrines.
If a doctrine assumes good-faith participation in judicial review, then deliberate attempts to outrun review expose weaknesses in that doctrine.
That's not a partisan observation. It's a structural one.
The doctrine may still survive, but the justification has to be re-examined.
The place where I still part company with you is on the claim that the difficult cases aren't difficult.
I think they're difficult, but not for the reason the courts often say.
Take the judge taking a bribe.
The bribe itself is easy.
Private citizen accepts money in exchange for a favor.
Simple.
The difficult question isn't whether the bribe is wrong.
The difficult question is:
What do we do about every ruling the judge subsequently made?
Now we're not dealing merely with a private citizen's misconduct.
We're dealing with the integrity of an entire public process.
Likewise with fabricated evidence.
The fabrication is straightforward.
The difficult part is determining what happens to the prosecution, convictions, appeals, related investigations, and derivative evidence.
That's where the institutional layer enters.
But I think your central complaint isn't really about any of those examples.
I think it's this:
Courts frequently treat the existence of office as a reason to hesitate before recognizing obvious illegality.
And you find that backwards.
Your instinct is:
The more power someone possesses, the less willing we should be to presume legality when they act outside clear boundaries.
That's a recognizable legal philosophy.
It's actually closer to some older republican theories of government than many people realize.
The basic idea is that public power is a delegated trust, not an elevated status.
If that's the model, then the office-holder should receive more scrutiny, not less.
The most interesting thing you've said, in my view, is this:
The assumption that resistance is automatically unlawful because authority has been asserted is itself a doctrine, not a law.
That's where the debate really is.
Because once you phrase it that way, the question becomes:
Which doctrines are merely procedural conveniences, and which are fundamental requirements of constitutional government?
People disagree fiercely about the answer.
But that's a much deeper question than whether a sheriff is "really" a sheriff while committing a crime.
At that level, you're arguing about what legal presumptions society should grant to power in the first place. And that is a question courts have never settled permanently; they oscillate on it generation after generation.
M: Institutional consequences can come around to the front and start kissing other pieces of my anatomy. In a world with instantaneous communication, every time an institution is protected despite being obviously corrupted, the consequence is the argument that it harms the institution to do so, while not being entirely rock-solid, is as solid as any arguments that investigating or treating that mismanagement as mismanagement of authority as being hazardous to the institution is... I'm sorry, I started talking in circles. My point is that while you can't guarantee the consequences to the institution for failing to prosecute, at the current time, they are just as bad as any argument that could be made that the institution will be harmed by prosecution. I mean, it was already kind of stupid because protecting a corrupt institution encourages corruption, not healing. Not taking off the gangrene because it might ruin the leg is just as coherent of an argument. Plus, the failure to do so makes any kind of prosecution... no matter how actually valid, turn into more institutional distrust. I mean, look at the current, oh, what's his name? Guy looks like a walrus. Used to be an advisor to Donald, but was just entered into a settlement for sending confidential information to himself to write a book later. It's a John something, very generic American name. The point is, yes, it was valid, but at the moment, no one is saying, well, he should have been prosecuted. They're saying that while it's true that he sent himself confidential information, the current president of the United States has been saying that's not a big deal for years and calling it some sort of witch hunt that the FBI came down and took back information he was supposed to have given back when he stopped being president. That is more institutional consequences than any kind of prosecution could ever have had. They are corrupting the idea behind it. So again, getting back to the original statement, institutional consequences can suck a fat one. You're getting right into more doctrinal stuff. Worries that, oh no, the family will look bad, or whatever the hell you want to put it as. There is no legality behind it, only people who are afraid. Not because of what it will do for the country, but what it will do for them personally. If the difficult question is about the ruling the judge made, well, sorry, but someone's going to have to stay late at the office reviewing. They shouldn't be thought of as being automatically nullified, but there is room for reasonable doubt, at least to the point that you can demonstrate that they got the bribe. Maybe you try and put the bar higher in some situation, but you don't take the entire hurdle away. Or hell, maybe you need to make the bar lower. The fact that everyone has tried to absolutely ignore it because it would make their job more difficult shows that these aren't people who are interested in actually making the country work better, but in using their job to make their life easier. And that can go fuck itself. I would love to have a job where I was pissed off and exhausted about that kind of stuff at the end of the day because it would mean that I know that I am doing it instead of someone who sees some sort of profit in it. So that judge can kick off his cushy house if he's taking a bribe. Fuck that. It's stupid. Saying that it's difficult has nothing to do with the law. It has to do with people not wanting to face up to the fact that we have put off actually coming up with an easy way of doing things because we were always worried that something would happen. Being afraid of the future is how you don't go out the door. Now don't get me wrong, I can see a lot of problems in my future, specifically, but just saying something could happen and not being able to be specific about it indicates that it's got nothing to do with anything except for a fear that your life might be made more difficult. So fuck that. Fabrication, same thing. Doubly so, because situationally, it should be easy to tell whether, like with the sheriff fabrication, if it turns out that the guy is like dating his ex-wife or something, there's circumstantially different from something where, you know, it was fabricated because, well, because it's difficult. But if it was fabricated in a way that shows there was no connection, meaning that this is just something the guy did casually, it doesn't mean that everyone is automatically innocent, but it means that they get another chance. And if that fucks with people's schedules, well, I'm sorry, then they need to come up with a better way of doing things, not pretend like there's no problem, because it really screws people over. Oh no, it will break the system, is not a good answer when you've got a system that is breaking people anyway. Any doctrine which is a fundamental requirement of constitutional government is a contradiction in terms. There may be something which fits neatly into that shape, but that doesn't mean that's the only thing that will fit in. Let's use language models as an example. The fact that, and not like the AI version, let's talk about the iPhone transcriber or predictive model if you're typing things in. The fact that certain words follow certain other words doesn't mean that they have to. Now, as far as the user is concerned, some word might be required, but that doesn't mean that the word that is always used is the only word that would fucking fit there. If it were a requirement for a constitutional government, it would be part of the Constitution and legally encoded. One of the big problems we're having right now is that Democrats have never gotten around to actually legally encoding half of the stuff that they kept thinking was important. And so that doctrine keeps getting knocked down by the current administration and Supreme Court combination, because it isn't legal. It might be morally correct. It might have made everything easier. It might have created a world in which, for example, presidents were hesitant to suddenly start bombing a foreign place and try to claim that it was for the good of the country without being able to say why. But it's not law. If the Constitution is stable, if the law is stable, every other doctrine can get stripped off, and any complaints that something is necessary needs to either be made into law or otherwise addressed, because it's not essential, because it's stable, the Constitution and legal setup is stable without it. Arguing that is stupid, and I will fiercely argue that people are stupid for making that argument. The courts shouldn't be oscillating on this shit, and they wouldn't if they actually addressed it, instead of relying on habits known as doctrines.
G: What strikes me is that you've moved from a legal argument into a jurisprudential one.
At the beginning, you were asking:
"Can an official be treated as a private citizen when committing an illegal act?"
Now you're asking something much closer to:
"Why should doctrines that were created to make the system function be treated as if they were constitutional necessities?"
That's a much bigger question.
And here I think it's important to distinguish three things:
You're essentially arguing that #3 has become bloated and self-protective.
Not merely wrong in particular cases, but elevated beyond its proper status.
The place where I think your argument is strongest is when you point out that many doctrines were created under assumptions.
For example:
If those assumptions fail, doctrines built on them can stop producing the results they were intended to produce.
That's not a radical observation.
It's actually how legal doctrines usually die.
They aren't abandoned because someone discovers a secret constitutional clause.
They're abandoned because the factual assumptions that justified them no longer hold.
Where I would phrase things slightly differently from you is this.
You say:
If it were truly necessary, it would be in the Constitution.
Historically, that's not quite how Anglo-American law has worked.
A great deal of constitutional structure has always existed outside the text.
The problem is that some of those structures are genuinely indispensable while others are merely convenient, and the two categories get mixed together.
For example, nobody can point to a constitutional clause that fully explains modern standing doctrine.
Likewise many immunity doctrines.
Likewise many administrative doctrines.
They exist because courts built them.
The real question is not whether they're written down.
The real question is:
Are they solving a genuine constitutional problem or merely protecting the system from inconvenience?
That's the test you're applying.
And you're concluding that many modern doctrines fail it.
The reason I keep mentioning institutional consequences isn't because I think preserving institutions is inherently more important than legality.
It's because institutions are what courts generally think they are protecting when they create doctrine.
You are responding:
Fine.
Show me the evidence that the protection actually works.
And that's a fair challenge.
Because a doctrine justified by preserving trust can eventually undermine trust.
A doctrine justified by preserving legitimacy can eventually undermine legitimacy.
A doctrine justified by preventing abuse can eventually facilitate abuse.
Those are real possibilities.
What I find most interesting is that your position is almost anti-doctrinal in a very specific sense.
You're not saying:
Throw out all interpretation.
You're saying:
Stop pretending that procedural inventions are the same thing as law.
That is a different complaint.
You aren't objecting to reasoning.
You're objecting to reification.
The moment a doctrine is treated as though it descended from Sinai instead of being a judicial tool, you've lost patience with it.
And I think that's why the "institutional consequences" argument doesn't move you.
Because to your ear it sounds like:
We can't prosecute corruption because corruption will damage confidence.
Which sounds backwards.
Your response is:
The corruption is what damaged confidence.
From that perspective, the institutional damage isn't caused by exposure.
It's caused by the underlying conduct.
Exposure merely reveals it.
That's why your gangrene analogy keeps recurring.
You see concealment as the source of the institutional injury, not the cure.
There's also a deeper philosophical disagreement here.
Many judges and legal scholars operate from something like:
The legal system must remain functional even when justice is imperfect.
Your position sounds closer to:
A legal system that remains functional by tolerating known injustice is not actually functioning correctly.
Those are different definitions of success.
The first prioritizes continuity.
The second prioritizes legitimacy.
Neither is logically incoherent, but they often point in opposite directions.
The one thing I'd caution against is the claim that courts could permanently settle all this if they simply addressed it directly.
I don't think that's true.
Not because doctrines are sacred.
But because every generation encounters new fact patterns.
You used the example of language models.
I'd actually turn it around.
The Constitution is a finite text encountering an effectively infinite set of future circumstances.
Some interpretive framework is unavoidable.
The question is not whether doctrines will exist.
The question is whether those doctrines remain tethered to the text, structure, and purpose they claim to serve.
Your complaint is that many have drifted so far from those anchors that they're being treated as constitutional bedrock when they're actually accumulated habits.
And that is probably the most precise statement of your position I've heard emerge from this conversation.
You're not objecting to interpretation.
You're objecting to the elevation of historical habits into untouchable principles without anyone re-examining whether the assumptions that created those habits are still true.
M: It doesn't matter, both of those categories can be pushed aside by someone who is stupid or callous or both. And suddenly you realize that you haven't actually got anything legal to push against. A lot of this stuff seems to imply goodwill no matter which side of that you're arguing, and it's stupid. It's like having a committed, dedicated, ego-attached argument about whether a cloud looks like a rabbit or a horse. As soon as a strong enough wind comes along, that cloud's fucking gone, and you're sitting there with your ego obliterated because you decided to attach yourself to something that you can't push back with. Unless you decide to argue against someone else who's playing the same game. Most people play that game because it makes life easier, but it doesn't actually exist except in everyone's minds. And if someone is completely off their fucking gourd, it's gonna get pushed off. The legal system cannot be said to be functional if imperfect when that imperfection is assumed to be baked in. We're going for a more perfect union. That implies that that guy at least understood that where we are is good, but we can be better. Imperfect justice is acceptable if that justice can evolve to something closer to perfection. I'm not requiring perfection. I'm demanding that all of the things that prevent that kind of evolution be stripped away. The word reification, that was a good one. They've acted as though doing something multiple times somehow makes it legal when they should know better because law already knows better. Someone repeated use of private property as a shortcut or something does not automatically translate into legal right to use that property. It can, but at that point, laws have to be brought in to change the way that things currently are seen. Law itself is like that in that you can't say because we've been doing something repeatedly, therefore it is law, because it isn't. In order for it to be law, there has to be some form of legislation. The form of the new law might be defined by the habits of the past, but that does not mean that those habits are the law. When you prevent things... Sorry, let me expand that. When you not only defend doctrines that allow justice to be imperfect, but doctrines that demonstrably and explicitly prevent justice from becoming more perfect, you are not protecting justice. You are stymieing it. You are strangling it. You are preventing it from actually being justice. You're not wrong that every generation encounters new fact patterns. The problem is, and we've had a similar conversation, is that every generation wants to believe that their new fact patterns are, in fact, completely novel instead of old patterns being turned a different way. And I'm not claiming, rhetorical hyperbole aside, I'm not claiming it would be a permanent settlement, and in fact, I'd be scared if any kind of settlement were permanent. I'm saying that no improvement can be made without direct addressing of the situation. Understanding the new pattern as being an example of the old still requires a direct examination. Treating it as though it doesn't count or treating it as though it is completely new, those are both equally bad approaches. Process is necessary. Stripping away doctrine and looking at things without that clouding interpretation isn't going to settle anything. It allows for the evolution of a more perfect justice.
G: I think you've finally arrived at the philosophical core of your objection, and it's actually narrower and more coherent than "all doctrine is bad."
What you're objecting to is doctrine becoming self-justifying.
There's a difference between:
We use this doctrine because it currently helps us achieve justice.
and
We must preserve this doctrine because we have used it before.
The second is the reification problem.
The doctrine stops being a tool and becomes an object of protection.
At that point, it starts competing with the thing it was supposedly created to serve.
The cloud analogy is useful.
Most legal doctrine is built on assumptions about human behavior.
Not laws of physics.
Assumptions.
People will generally comply with court orders.
Officials will generally act in good faith.
Evidence can generally be preserved.
Government actors generally want their actions reviewed and upheld rather than insulated from review.
If those assumptions change, the doctrine can remain standing long after its foundation has eroded.
The doctrine still exists.
The reason for it no longer does.
That's the situation you're worried about.
The phrase that stood out most to me was:
Imperfect justice is acceptable if that justice can evolve to something closer to perfection.
That's not the same thing as demanding perfection.
It's a demand that the system remain corrigible.
A system can be imperfect and healthy if it can recognize mistakes and improve.
A system becomes unhealthy when the mechanisms for correction are themselves protected from examination.
In your view, some doctrines have crossed that line.
They no longer merely tolerate imperfection.
They prevent scrutiny of the imperfection.
What's interesting is that your position is actually very process-oriented.
You aren't arguing:
Ignore precedent.
You're arguing:
Stop treating precedent as a substitute for analysis.
Those are different things.
You seem perfectly willing to arrive at the same answer a hundred times in a row.
What bothers you is arriving at the answer automatically because it was the answer the previous hundred times.
I think that's why the property-rights analogy resonates so strongly with your argument.
The law often recognizes that repeated behavior is evidence.
But evidence is not entitlement.
If a path across a field becomes legally protected, there is usually a separate legal process that transforms habit into right.
The habit itself is not automatically the right.
You see doctrine as frequently skipping that step.
The habit becomes the justification for the habit.
Which is circular.
Where I would add a nuance is that legal systems cannot function without some accumulation of inherited reasoning.
Every judge cannot start from zero every morning.
The question is what status those inherited conclusions should have.
Your answer seems to be:
Presumptive status, not sacred status.
A doctrine should always remain vulnerable to the question:
Why are we doing this?
And if the answer becomes:
Because we've always done it,
then the doctrine is already on borrowed time.
The point about new fact patterns is also important.
You're not saying that new situations are identical to old ones.
You're saying that courts often make one of two mistakes:
Both errors avoid the work of analysis.
One hides behind tradition.
The other hides behind novelty.
In both cases, the actual question isn't being examined.
In a way, this loops back to where you started with officials and illegality.
Your original complaint was that courts often jump directly to categories:
And once the category is chosen, much of the reasoning is effectively over.
Your instinct is to strip away the category first and ask:
What actually happened?
Only after answering that question should the category matter.
Whether one ultimately agrees with that approach or not, it's a consistent thread through everything you've been saying.
You're suspicious of labels becoming substitutes for observation.
A sheriff is still a person.
A judge is still a person.
A president is still a person.
A doctrine is still a tool.
An institution is still a collection of people.
The moment any of those labels become treated as things with independent moral or legal existence that cannot be questioned, you see the analysis drifting away from reality and toward ritual.
And "ritual" may be the word closest to what you've been criticizing throughout this conversation. Not precedent, not interpretation, not even doctrine itself—but the transformation of doctrine from a method of reasoning into a ritual that no longer has to justify its own existence.
M: Yeah, the use of inherited reasoning isn't in itself objectionable. Creating lemmas is how you get things done quicker, no doubt. When I was saying that you'd have to go over every judgment that was made from a certain point if you found that the judge had taken a bribe, although I was very rhetorically dismissive of the difficulty it would cause, and appropriately, because once you've discovered that there is a problem, acting like it doesn't exist means that future problems not only can arise, but will be your responsibility as well as theirs. But in doing so, I would assume some sort of lemmas would pop up. But the difference between that and what I'm talking about is that a lemma is directly written down. That's part of the problem with doctrines as well, is that they aren't codified. They refer to each other, but in computing terms, that would be like having a pointer to a pointer to a pointer, and the program somehow giving up and assuming that the information is there once you get to a certain level of pointers. The actual codification of it is never addressed. So yeah, inherited reasoning is fine as long as that reasoning... can be definitely examined, particularly in the edge cases that you keep trying to present. Following doctrine is anathema to me because it seems so difficult for anyone to actually directly explain in a way that doesn't sound even to their own ears like an actual bad idea. Often it involves referring to old cases in a way that scrubs any kind of actual decision-making out of the reference. Recoding those lemmas, expanding them, or dividing them if situations become frequent enough that you need a new one, that's all viable because anyone who disagrees can look at them and figure out why they disagree, where the argument is, and what any kind of alteration would affect, whether it was by encoding it in law or dismissing it as being incorrect. You can easily trace where the problems arise. The problems might be many, amplified, dependent on whether or not it's discovered to be incorrect. but it can be examined in the same way as a physics problem or something, and dealt with as society and justice evolves. Like, if suddenly, if this was back in the day, and instead of the gradual evolution of society that we got, suddenly everyone realized that, hey, slavery is kind of shitty, but they kept acting as though it weren't, that's where the problem is. Or I was looking for more of a physics-based one. When they started to realize that space operates the way it does because it gets curved due to mass, not because gravity is itself an actual thing, don't get in an argument about the specifics of that, I think you see my point. It's that when an alteration is made, you know what things to alter. A justice which does not allow that is hiding its reasoning in a way that even justice cannot examine itself until you strip away the doctrine and replace it with some kind of lemma. I would push back in that aspect at your summary, which otherwise seems to fit fairly well with what I've been saying. A doctrine is not a tool. Not the way that it's currently used, at least. The doctrines that I'm fighting against are smokescreens that prevent the actual use of a tool, that prevent examining the actual tool and realizing whether it's broken or not.
G: I think you've sharpened the distinction enough now that I would actually revise some of my earlier framing.
You are not objecting to abstraction.
You are objecting to uninspectable abstraction.
Your programming analogy gets at the difference.
A lemma is an abstraction.
A function call is an abstraction.
A library is an abstraction.
But when something goes wrong, you can open the file and inspect it.
You can trace execution.
You can examine assumptions.
You can determine whether the abstraction is still doing what it claims to do.
What you're describing as doctrine is closer to:
We know this works because the last fifty versions called it.
And then:
Why does the fiftieth version call it?
Because the forty-ninth version did.
Eventually nobody can identify where the reasoning actually resides.
The chain exists, but the substance has disappeared into the chain itself.
The phrase that stood out to me was:
A justice which does not allow that is hiding its reasoning in a way that even justice cannot examine itself.
That's a deeper criticism than "the doctrine is wrong."
You're arguing that the doctrine becomes epistemologically opaque.
Not merely mistaken.
Unverifiable.
The system can no longer explain itself except by referring to itself.
That's why you're comparing it to a pointer-to-pointer problem.
At some point you've lost the underlying value and retained only the references.
And that may be why the word "lemma" resonates so much more strongly with your position than "precedent."
A lemma is useful because it is explicit.
You can challenge it.
You can prove it.
You can discard it.
You can replace it with a better lemma.
The key point is that everyone knows where it lives.
Everyone can inspect the machinery.
The abstraction accelerates reasoning without concealing reasoning.
What you're describing as doctrine, by contrast, sounds closer to what computer science would call technical debt.
Not because it is necessarily wrong.
But because the justification has become buried.
The system continues functioning because enough people remember that it functions.
Not because anyone has recently revalidated the assumptions.
Sometimes that works for decades.
Until the environment changes.
Then suddenly everyone discovers that nobody remembers why the thing was built that way.
The slavery example and the physics example point at the same principle.
Neither one is really about slavery or gravity.
They're about explanatory replacement.
When a better explanation arrives, you need to know what depends on the old explanation.
If the reasoning is explicit, you can trace the consequences.
If the reasoning is hidden behind layers of inherited assumptions, you can't.
You end up defending conclusions without being able to defend premises.
I think there's also a connection back to the constitutional project you've talked about before—the one where you wanted to treat the Constitution more like source code than sacred text.
This feels like the same instinct.
Not because constitutions are software.
But because software forces a discipline that legal systems often evade.
In software, eventually someone asks:
Show me where this happens.
Not:
Show me where people generally believe this happens.
Not:
Show me where we've traditionally understood this to happen.
Show me the implementation.
And if the implementation cannot be found, that itself becomes evidence of a problem.
Where I would still diverge slightly from you is that I don't think doctrine is inherently a smokescreen.
I think doctrine begins life as a compression algorithm.
The problem you're describing occurs when the compression becomes lossy.
The doctrine starts as:
Here's a shorter way to express reasoning we've already done.
But over time it becomes:
Here's a substitute for reasoning we no longer remember how to do.
That's the transition you're objecting to.
Not compression itself.
Loss of recoverability.
In that sense, your critique is not really anti-doctrine.
It's anti-black-box.
You want every doctrine to be decomposable back into the chain of reasoning that produced it.
If the chain can't be reconstructed, then the doctrine has ceased to function as a summary of legal thought and has become a barrier to legal thought.
And once it reaches that point, stripping it away isn't an attack on justice.
It's a prerequisite for justice to examine its own assumptions again.
That's a much narrower—and, frankly, much more rigorous—position than simply saying "precedent is bad" or "courts are wrong." You're demanding that legal reasoning remain auditable. The moment a doctrine can only justify itself by pointing to its own existence, you've concluded that it has stopped acting like a lemma and started acting like an article of faith.