The Supreme Court will surely reject Donald Trump’s absurd claim of total immunity for any crimes he committed while president, right???
That’s what all the experts have been telling us for months. Even after the Court made the brow-raising decision to hear the case at all—rather than letting stand a definitive lower court ruling that slapped down this Hail Mary argument, which it could easily have done—and even after it took as long as possible to take up the case and schedule oral arguments, aiding Trump immeasurably with that delay, we were still told over and over that the justices—even the shamelessly partisan right wing ones—would ultimately do the right thing.
They had to, right? They’re not stupid people, unfamiliar with the Constitution. They have lifetime appointments and are not beholden to Donald Trump, even though he put three of them in their jobs. They might be believers in a revanchist right wing ideology, but they couldn’t possibly be that shamelessly partisan…..right???
The better question is why we continue to be so naive. The NFL may have changed the kickoff rule, but Lucy is still pulling the football away from Charlie Brown, and like Chuck, we seem to fall for it every time.
Here are Slate’s Dahlia Lithwick and Mark Joseph Stern, both of them savvy, veteran Supreme Court observers, describing the self-soothing reasoning:
There were promising signs: (The justices) had, after all, refused to wade into the Trumpian efforts to set aside the election results in 2020. They had, after all, hewed to a kind of sanity in batting away Trumpist claims about presidential records (with the lone exception of Clarence Thomas, too long marinated in the Ginni-scented Kool-Aid to be capable of surprising us, but he was just one vote).
We promised ourselves that there would be cool heads and grand bargains and that even though the court might sometimes help Trump in small ways, it would privilege the country in the end. We kept thinking that at least for Justices Brett Kavanaugh and Neil Gorsuch and Chief Justice John Roberts, the voice of reasoned never-Trumpers might still penetrate the Fox News fog. We told ourselves that at least six justices, and maybe even seven, of the most MAGA-friendly court in history would still want to ensure that this November’s elections would not be the last in history. Political hacks they may be, but they were not lawless ones.
That was the collective delusion. The only question now is when we’re going to wise up and recognize what is right before our eyes:
That the archconservative majority that controls the US Supreme Court is a corrupt arm of a neo-fascist movement.
Hyperbole? I’ll gladly eat crow if that turns out to be the case, come June. But oral arguments yesterday do not bode well.
PARTISANO
Lithwick and Stern’s piece was one of the best on yesterday’s terrifying shitshow, so I’ll put this in cruise control and let them take it for a bit. (Wake me in a few.)
After so much speculation that these reasonable, rational jurists would surely dispose of this ridiculous case quickly and easily, Thursday delivered a morass of bad-faith hand-wringing on the right about the apparently unbearable possibility that a president might no longer be allowed to wield his powers of office in pursuit of illegal ends.
This was the case we had been waiting for, and all was made clear—brutally so. These justices donned the attitude of cynical partisans, repeatedly lending legitimacy to the former president’s outrageous claims of immunity from criminal prosecution. To at least five of the conservatives, the real threat to democracy wasn’t Trump’s attempt to overturn the election—but the Justice Department’s efforts to prosecute him for the act…..They evinced virtually no concern for our ability to continue holding free and fair elections that culminate in a peaceful transfer of power. They instead offered endless solicitude for the former president who fought that transfer of power.
Echoing a thought experiment about SEAL Team Six posed in the lower court hearing, Trump’s counsel, John Sauer, told Sonia Sotomayor that, under the right circumstances, the president could legally order the US military to assassinate a political rival. Similarly, he told Elena Kagan that a president could order the military to mount a coup, again, if the right circumstances arose. What those circumstances could possibly be he declined to explain.
Constitutional law professor Anthony Michael Kreis tweeted: “Unbelievable that Supreme Court justices who see forgiving student loans, mandating vaccines, and regulating climate change as a slippery slope toward tyranny were not clear-eyed on questions of whether a president could execute citizens or stage a coup without being prosecuted.”
Elections expert Marc Elias tweeted: ”I am in shock that a lawyer stood in the US Supreme Court and said that a president could assassinate his political opponent and it would be immune as ‘an official act.’ I am in despair that several Justices seemed to think this answer made perfect sense.”
And here’s Edward Luce of the Financial Times: “Still can’t quite digest that a former and possible future American president is telling the supreme court that he should have immunity to kill political rivals. Utterly surreal.”
But according to Trump’s argument, almost EVERYTHING a president falls within the scope of the his official duties. (Hell, even the Pope doesn’t get that kind of authority, but has to be deliberately speaking ex officio to be considered infallible.) But as Justice Sotomayor asked, if everything a president does can be classified as an “official act,” what was Nixon’s pardon all about? Tricky Dick certainly agreed. “When the president does it, that means it’s not illegal,” as he infamously told David Frost. But he still took he pardon, didn’t he?
Trump, of course, has long believed that he (and he alone) is above the law, both as a private citizen and as president. “I have an Article II, where I have to the right to do whatever I want as president,” he said in 2019, during the Mueller probe of his collusion with Russia over the 2016 election. No one disputes that this megalomaniacal malignant narcissist thinks that. But for the Supreme Court to agree? When you’re a star they let you do it, I guess.
That belief has not prevented Donald from embracing the opposite tack when it served his needs, of course. Lest we forget, in his second impeachment trial, in January 2021—the one stemming from his actions on January 6—Trump’s own lawyers argued explicitly that the proper avenue for adjudicating the charges against him was post-presidential criminal prosecution, by way of dodging the more pressing threat. “After he is out of office,” said one of those lawyers, Bruce Castor, “you go and arrest him.”
But that was then.
It’s impossible to imagine this Court responding positively if it were Joe Biden or Barack Obama or Bill Clinton arguing that they had absolute immunity to do whatever they wanted as president. (In fact, the same Republicans who are on Trump’s side in this case just recently tried to impeach Joe Biden). And in the wake of a SCOTUS decision in favor of Trump, you can be sure that no future Democratic president—if there are any, or any free elections at all in America—will ever be allowed to make the same defense, without the Court finding (or inventing) some loophole why it doesn’t apply to them. The one thing you can count on is that the Court will frame its ultimate decision in such a way that Biden is not able to avail himself of that same imperial authority, only Donald Trump or some other Republican successor.
SEARCHING FOR THE REAL KILLERS
But “what the president does” did not seem to be on the docket yesterday, only the actions of his foes.
“Five justices sent the message, loud and clear,” wrote Lithwick and Stern, “that they are far more worried about Trump’s prosecution at the hands of the deep-state DOJ than about his alleged crimes, which were barely mentioned…..(T)he court has now signaled that nothing (Trump) did was all that serious and that the danger he may pose is not worth reining in. The real threats they see are the ones Trump himself shouts from the rooftops: witch hunts and partisan Biden prosecutors.”
Much-respected retired federal judge J. Michael Luttig remarked, “The Court and the parties discussed everything but the specific question presented.” Several times when the special counsel’s advocate, former Deputy Solicitor General Michael Dreeben, wanted to talk about the specifics of this case, and of Trump’s conduct, the right wing justices insisted he go back to hypotheticals carefully constructed to bolster their own pro-imperial position. (Gee, I wonder why.)
In fact, the right wing justices seemed singularly focused on avoiding any mention of the pertinent facts of this case, such as Trump’s own actions for which he is criminally charged, or—speaking of future presidents—the fact that he is again running for the highest office in the land.
“I’m talking about the future!” Kavanaugh declared at one point to Dreeben, pitching himself not as Trump’s human shield but as a principled defender of the treasured constitutional right of all presidents to do crime. (We’re sure whatever rule he cooks up will apply equally to Democratic presidents, right?)
Nixon, too, famously professed not to be acting not out of self-interest, but on behalf of future presidents. Trump has echoed that farcical claim. Justice Neil Gorsuch actually said: “I’m not concerned about this case, but I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives.”
Which is more appalling: that he’s “not concerned about this case”—that is, the one before him—or that he thinks the DOJ is the real danger here?
Sam Alito even made the Orwellian argument that total immunity is necessary to prevent future presidents from committing illegal criminal acts:
“Now, if an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?”
The mind reels. (PS The defendant in question is not a president who headed off into a peaceful retirement, or even left office peacefully at all, but one who tried to mount an autogolpe and has since encouraged his followers to political violence even as he runs for the White House yet again.) So Alito is worried that the threat of a post-presidential prosecution would have a chilling effect on presidents who wanted to commit crimes while in office? I suppose that’s correct—and, like all deterrence, intentional.
Is there a genuine risk of overzealous prosecutors going after a genuinely innocent former president for partisan reasons? Sure. But it has never happened in 235 years of American democracy. Very much the contrary, in fact: there has been an extreme reluctance to charge former presidents with anything, even when they have in fact committed major crimes.
You know what has happened in our history, though, and very recently? A president trying to overturn an election by means of a violent self-coup. And that guy is still out there, and seeking a return to power. Which danger do you think is more real and pressing?
But none of that matters to the Court’s right wing cabal.
FALL OF A FIG LEAF
The night before oral arguments, Never Trump conservative Tim Miller of The Bulwark suggested on MSNBC that the right wing supermajority on the Supreme Court‑—including a justice whose own spouse helped foment this very insurrection—was playing a cowardly and deceitful game that would enable it to maintain a patina of legitimacy by ultimately rejecting Trump’s absurd claim to total immunity, but only after it helped re-elect him. Like many, Miller suggested that not even these Unitary Executive Theory-friendly justices are willing to endorse a completely imperial presidency. (Hell, Joe Biden might get ideas!) But they are moving as slowly as possible—not to mention the consideration of that claim in the first place—in order to aid Trump’s bid to regain power after that they can reject it with an Alfred E. Neuman-like “What, me worry?” shrug of faux innocence.
After oral arguments, however, I am forced to take a far darker view that the Court may not even bother with that fig leaf, but will simply agree with Trump’s outrageous neo-fascist assertion.
It’s true that it’s notoriously difficult to parse how a Supreme Court decision will go based solely on the justices’ questions. (Some, such as George Conway, have specifically counseled caution on that front, and even offered cause for optimism.) The justices may well have been engaging in some wild-ass thought experiments in order to shape the contours of this very grave matter, on the way to a rational and clear-eyed decision. Or not.
But it may not matter.
Even if the Court ultimately rules against Trump, the delay (and further delays it might cause by sending the case back down to Judge Amy Chutkan for further clarification) have already been a massive gift to Trump and his cause. For that matter, so was the mere matter of dignifying his claim in the first place.
Prof. Ruth Ben-Ghiat of NYU, an expert on authoritarianism, tweeted: “Folks, whatever the Court does, having this case heard and the idea of having immunity for a military coup taken seriously by being debated is a big victory in the information war that MAGA and allies wage alongside legal battles. Authoritarians specialize in normalizing extreme ideas and involves giving them a respected platform.”
Were there any bright spots? Only a few. At one point, Trump’s own attorney admitted that some of his acts related to overturning the election were “private,” opening the door for Smith’s prosecution to proceed even if some charges will be thrown out. But the delay alone could still be deadly to the special counsel’s case, to say nothing of depriving the American people of a verdict before they go to the polls.
It is ironic that Trump benefited—again—from the justice system’s generosity the very same week that Harvey Weinstein had his conviction for sexual assault in New York state thrown out on what some would say is a technicality, though others believe it is a more substantial issue of jurisprudence. (The good news: he still faces 16 years in prison in California for a separate rape conviction.) The system sure is good at meticulously protecting the legal rights of rich and powerful white guys, the more horrible the better. In fact, Ronan Farrow has already written of the ways in which the New York court’s logic in overturning the Weinstein conviction might also help Trump get off. As it were.
MEANWHILE, BACK IN NEW YORK
Over the past years, we have been shocked time and time again by the unthinkable coming true, from Trump’s election in the first place to the court overturning Roe. But we should not have been shocked by any of it, because it has been telegraphed far in advance. The same thing is happening now with the immunity claim.
It is fitting that SCOTUS is arguing this issue even as a perma-scowling Donald Trump sits petulantly at the defendant’s table in a New York State courthouse in Lower Manhattan, on trial for election interference in the form of hush money payments to a porn star, and his illegal efforts to hide those payments from the authorities. (Chutzpah Hall of Fame: Trump even tried to take the payments as a tax deduction. Very on brand.)
But Trump certainly does not want to be at that defendant’s table, as his Resting Asshole Face shows us every day. He does not think the law applies to him the way it does to ordinary mortals, which is how he has lived his whole miserable, entitled life, and more or less what his lawyer in the J6 case argued before the Supreme Court. Much as he would like to stay home eating cheeseburgers and watching Fox and Friends, however, he can’t just not show up in court, because for the moment, he is subject to the rule of law. If he didn’t turn up, some New York State Troopers would come knocking on Trump Tower and haul him down there in cuffs.
The image of Trump sitting at the defendant’s table and scowling (when he’s not nodding off or farting) is a reminder that, for the moment, the rule of law still pertains in the United States. But if he has his way, he will never be a defendant in a courtroom ever again, nor held accountable for anything at all. And a lot of people—including some in black robes (and some in white ones) are working very hard to help him achieve that goal.
If Donald Trump wins the election and regains the White House in November, you will never again see a picture like the one that illustrates this essay, because Donald Trump will squash all criminal proceedings against him and his allies, pardon the January 6 insurrectionists whom he summoned to try to overthrow the government, and operate as the head of state who is above the law and can do whatever he wants.
COURTING DISASTER
Of the four criminal trials that Trump is facing, the NYC trial will likely be the only one that will take place before the election, or maybe at all, since it concerns crimes he (allegedly) committed before becoming president. In fact, it concerns crimes he (allegedly) committed in order to become president. If the Court rules in his favor, the DC, Georgia, and Florida cases may all be thrown out.
Therefore the Supreme Court decision on Trump’s immunity claim may prove a pivotal nail in the coffin of democracy. At the very least, it is a damning statement about the dysfunction of our political and legal system, largely owing to deliberate sabotage by the American right wing going back to the time of Newt Gingrich if not before. As Liz Cheney wrote in a New York Times op-ed when the Court first agreed to take this ridiculous case, “It cannot be that a president of the United States can attempt to steal an election and seize power but our justice system is incapable of bringing him to trial before the next election four years later.”
Oh, but it can be. If the archconservative members of the Supreme Court—three of who were put there by that individual—want it to be.
But even if Trump—incredibly—skates out of this jam the way he has so many near-death experiences before, the failure to lock him up will not be the final word. As we all know, even conviction and incarceration—though richly deserved—in and of themselves would not be enough to keep him out of the White House, by law. Only the voters can do that. Notwithstanding the title of this essay, the New York trial not really democracy’s last stand, nor is the J6 case, nor Florida nor Georgia; it is but one in a series of events that collectively comprise that die-in-place defense. The really pivotal one will be on Election Day.
Because in the end, the courts will not save us, any more than Mueller did, or the Senate did in two impeachments, or the House Committee on January 6 did, and we would be foolish to count on them to do so. The only people who can save American democracy are us—the American people—at the ballot box in November.
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Photo: A disgruntled criminal defendant on trial in Lower Manhattan, April 2024. Credit: Getty Images.