Reply Some: Above Code. Open Flame.

Author’s Note

I started the week with a brief, joyful visit to one of my favorite archives. You’ll see that kind of work in the next few newsletters — and the attendant, absolutely essential reminder that history is much wider than the moment we’re in.

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Reply Some: Above Code. Open Flame.

Reply Some is a recurring dispatch in which I selectively respond to your questions and comments.

Michel in New Haven, CT asked:

Is there a historical precedent for J.D. Vance’s claim that ICE officers had total immunity?

Before I get to the answer, let’s pause.

Renée Nicole Good was 37. She was a wife, the mother of a young child, and a poet. In 2020, she won the Academy of American Poet’s prize for “On Learning to Dissect Feral Pigs.”

i want back my rocking chairs,

solipsist sunsets,

& coastal jungle sounds that are tercets from cicadas and pentameter from the hairy legs of cockroaches.

If you’re able to donate to support her family, let me know and I’ll comp a subscription to SMK.

Now, the history.

From sea to shining sea, nearly every American political idea has an ancestry, but this one does not. The archives contain no precedent for federal agents in face coverings dispatched over the objections of states, murdering American citizens and being shielded from the law by executive fiat. Qualified immunity exists, but it is civil, not criminal, and it doesn’t block prosecutions.

Even in the ugliest chapters of American history — from slave patrols, to the Fugitive Slave Act, to Wounded Knee, to COINTELPRO — the government did not create a legal category in which federal agents were declared beyond criminal law. It often failed to prosecute them. That is not the same thing.

Vance’s claim that ICE agents have “absolute immunity” is not some misunderstood corner of American doctrine grounded in U.S. law, but foreign idea: the notion that once an agent acts for the state, the courts must stand down.

In 1978, Chile’s Amnesty Law, enacted by Augusto Pinochet, wiped clean the crimes of the dictatorship’s soldiers and police after the 1973 coup. Argentina’s “Full Stop” (1986) and “Due Obedience” (1987) laws did the same for officers of the Dirty War, arguing that men who kidnapped and tortured were merely obeying orders. Those statutes were barricades constructed so the state’s enforcers would never face a judge. Argentina’s Supreme Court eventually tore them down in 2005, calling them unconstitutional and Chile spent decades clawing its way back from the same abyss.

Vance, an attorney, misspoke. Or not. He may have been signaling intention: this agent will not be held accountable for the death of Renée Nicole Good.

The United States has its own dark workarounds, but it looks different. Andrew Johnson used it to forgive former Confederates. Jimmy Carter used it in 1977 to absolve Vietnam draft evaders. A pardon is the state admitting a crime might have existed and choosing mercy anyway. It is not a claim that no law ever applied.

The pardon is Trump’s most reliable solvent. His second term opened with mass pardons for January 6 defendants. A federal agent charged over a killing would fit neatly into that pattern. The law would not be bent; it would be bypassed.

But Vance’s claim carries, of course, a more ambitious shadow. It should come as no surprise that this administration is flirting with extending—the Supreme Court recognized criminal immunity for presidential “official acts”—Trump’s shield downward, from the president to the people who carry out his will.

When the palace is exempt from the fire code and the king says it’s fine to strike a match, why wouldn’t you?

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