Sunday Mailbag - June 23, 2024

Happy Sunday. Several of you sent in thought-provoking reactions to recent posts I’m still processing — thank you. Positive comments are, of course, always welcome. Criticism is even more welcome. That’s what makes me better.

Unsurprisingly, my opposition to the Bragg conviction earned the most positive responses and the most heated critiques. But the love letter to Caitlin Clark wasn’t far behind. Some thoughts below.

Prosecutorial discretion

There’s a crucial concept in the American legal system without which none of the discourse about the Trump trials makes any sense: Prosecutorial Discretion.

There is no such thing as The Law™ without human application. The words in criminal statutes and the common law mean nothing without people - flawed, imperfect, fallible people - enforcing them.

Indeed, there is typically no obligation for American prosecutors to prosecute someone they know committed a crime, even a very serious one. There is often no obligation to prosecute unlawful conduct as a felony, rather than knocking it down to a misdemeanor (much less serious). A prosecutor’s discretion is just that — discretionary. Alvin Bragg didn’t have to do this. So why did he?

Don’t Brag, Bragg

Bragg says he was “just doing his job.” That is not an answer. His job entails deciding whether to prosecute. Even if he declined to charge Trump, he’d be doing his job.

Bragg ran on his record of suing the Trump administration “over 100 times” and promised to “hold Trump accountable.”¹ That helped him get elected because 86% percent of his voters oppose Trump.² Soon after, he tried to define resisting arrest as a nonviolent crime — a complete absurdity.³ He chose to prosecute some armed robberies as misdemeanors. ⁴ And yet, he found a novel way to prosecute Trump’s fraudulent checks as 34 felonies, even though, under NY state law, these are misdemeanors.⁵

That’s a really bad look for Bragg and the rule of law.

It doesn’t make us a banana republic. It just makes us stupid for electing prosecutors and then assuming that political factors won’t affect legal outcomes.

The judge and jury did their jobs and did them well. But this case should have never been brought in the first place. The person who fucked up here was Alvin Bragg.

Law and politics

Here’s the truth for those willing to face it: At the highest levels of political power, there is no such thing as law; there is only what there is political will to do.⁶

• There was no political will to criminally prosecute Bill Clinton for perjury and obstruction of justice, even though he was impeached for just that.⁷

• There was no political will to prosecute George W. Bush and Dick Cheney for war crimes post-9/11, despite a good argument both engaged in them.⁸

• Obama - another politician for whom I have great affection - killed American citizens in drone strikes without due process and faced zero legal consequences.⁹

Presidents commit crimes sometimes. It happens. Trump is prosecuted where others are not because there is political will to do it: a lot of people really, really hate Trump and want to see him go down. And they don’t care for what, exactly, or how, because as I’ve heard from many Democratic friends, “he deserves it.”

Maybe. But so did Clinton, Bush, and Obama. None of them were even charged.

That is politics, plain and simple — not law.

Sex and basketball

My defense of Caitlin Clark led to some responses that I think “men are always physically better” than women at sports, and that this is a sexist position which renders my essay an “incredibly bad, useless, poorly written take.”

Fair enough.

If you enter any gym, you’ ll immediately see that not all men are more physically capable than all women - which is why I wrote nothing of the sort.

Yet the most physically gifted man is bigger, taller, stronger, and faster than the most physically gifted woman. As a consequence, the best male basketball player is always going to be better at basketball than the best female. That is not anyone’s fault; it is just fact, regardless of feeling.

I would lose in a 1-on-1 match up against Diana Taurasi - badly.

Lebron James would crush her.

What’s unique about Caitlin is that, at the very least, it is not clear she would lose in a 3-point shooting contest to Steph Curry.¹⁰ That parity is why the WNBA is now enjoying a record surge in ratings and attendance.¹¹

She’s a business, man

Basketball is a sport. There’s an attractive purity to making basketball about, well, basketball.

It is also naive.

Basketball is a damn business - a spectacle - in which revenue is directly tied to eyeballs. Eyeballs follow elite performance. Caitlin is elite at something - shooting - on par with the men. That’s why she is famous. And if it weren’t for her, I would have never even heard of Diana Taurasi. That sucks for Taurasi. But the entire WNBA should get over that, and get behind Clark.

I don’t think they will.

In a spectacular act of self-sabotage, the WNBA rejected Clark for Team USA.¹² That team has been wildly successful, winning 9 of the last 11 Olympics, four in a row, for an overall record of 70-3.¹³ With or without Clark, they are at no risk of losing.

But without Clark, they remain at great risk of people not watching and not caring. Both the league and the country are worse off for it.

—

To call me sexist or white supremacist for noticing all of this, as some have, is not an argument. It is an insult. And not a very good one.

A better one would be that I seem to have a crush on Caitlin Clark, even though she would never date me.

I do, and she wouldn’t.