Supreme Court Goes All In For Trump

The nation is devoting rapt attention to a trial in New York that will likely end in a hung jury and mistrial and come to nothing. A far more serious "trial" took place in D.C. a week ago in a hearing on presidential immunity that has delayed the Justice Department's four-count criminal indictment against Trump for the attempted overthrow of the 2020 election.

The conservative members of the Supreme Court left no room for doubt that, as in its 2000 Bush v. Gore ruling, they want to decide another election. In 2000 the Court stepped in to halt the Florida vote count, which handed the presidency to George W. Bush. This time they have gone to lengths to make sure it goes to Donald J. Trump.

When the Colorado Supreme Court ruled last December 19th that Trump could be banned from the state's ballots, the U.S. Supreme Court heard that case only 45 days later, which is a sprint for a court that normally goes by geologic time. It reversed Colorado less than a month after that on March 4th. That’s two-and-a-half months start to finish to make certain Trump would be on the ballot of all 50 states and territories.

March 4th was also the date Special Counsel Jack Smith's DOJ case against Trump for trying to steal the presidency from Joe Biden was to begin in the D.C. Circuit Court. But Trump and his attorneys asserted that he was entirely immune from prosecution for any action while president, a delaying tactic that paid off handsomely.

When Judge Tanya Chutkan of the D.C. court ruled against, Trump appealed. A three-judge panel of the appellate court unanimously agreed with Chutkan that total immunity was outlandish. The Trump legal team appealed to the Supreme Court.

Unlike Colorado, it would benefit Trump to see the January 6 case go as slowly as possible to insure there would be no trial before the election. The Supreme Court could not have been more obliging. Critics argued that a claim of absolute immunity to end the insurrection case should not have been accepted by the Court at all. But it did, even picking the last day of the term’s oral arguments — April 25th – to stretch the case by two-and-a-half months after the appellate court’s decision on February 6th.

And it was to be just a hearing; decision to follow at a leisurely remove without concern that there's an election coming, nor consideration that close to half the public might like to know whether they’d be voting for a felon.

The Department of Justice case is that Donald Trump, in the weeks leading up to and including January 6, 2021, engaged in a number of fraudulent actions intended to subvert the election of Joe Biden. The phrase is not used, but Trump attempted a coup d'état. The Court chose to review a case that no one had brought: the much wider philosophical question of whether the presidency in general is immune from prosecution no matter what the president does. It was Citizens United redux.

In that case, a conservative nonprofit group challenged campaign finance rules that had prevented it from airing a film about Hillary Clinton, but the Court reached far afield to decree that corporations and other outside groups can spend unlimited money on elections.

Here, the Court piggybacks on Trump's absurd claim that he is immune from prosecution to instead contemplate cosmic questions of whether all presidents should have full immunity protection covering all their official acts.

Justices made it clear that they desired to avoid the actual case before them. They did not want to deal with Trump or the illegality of his actions in the final months of his presidency. In the entire three-and-a half hour hearing, Trump's name was heard only three times, once when his lawyer, John Sauer, said, "So, when President Trump was --", but was interrupted, and twice in mentions of cases with "Trump v…." in the title. There was to be no discussion of this case. Note the exchange between the government's lawyer Michael Dreeben and Justice Samuel Alito:

MR. DREEBEN: …There's been some talk about the statutes that are at issue in this case. I think they are fairly described as malum in se statutes, engaging in conspiracies to defraud the United States with respect to one of the most important functions, namely, the certification of the next president.

JUSTICE ALITO: Well, I don't want to dispute the particular application of -- of that, of [U.S. Code] 371, conspiracy to defraud the United States, to the particular facts here, …

Dreeben would try again to bring the argument back to the Justice Department's indictment:

MR. DREEBEN:...I — I would suggest looking at the charges in this case. They involve --

JUSTICE ALITO: Well, I want to talk about this in the abstract because what is before us, of course, does involve this particular case, which is immensely important, but whatever we decide is going to apply to all future presidents.....

And again…

MR. DREEBEN: It's designed to protect the functions of the United States Government. And it's difficult to think of a more critical function than the certification of who won the election.

JUSTICE ALITO: Yeah, I'm not -- as I said, I'm not discussing the particular facts of this case,…

Justice Brett Kavanaugh made clear that the court was derailing Jack Smith's efforts to bring Donald Trump to account when he showed that the Court was simply using the case to consider a more monumental question, and in so doing delay the Trump case past the election:

JUSTICE KAVANAUGH: As you've indicated, this case has huge implications for the presidency, for the future of the presidency, for the future of the country, in my view...

JUSTICE KAVANAUGH: Okay. Second, like Justice Gorsuch, I'm not focused on the here and now of this case. I'm very concerned about the future…

Justice Neil Gorsuch had shown an interest only in the eternal, not the case at hand. After saying, "And, again, I'm not concerned about this case", he followed that with…

JUSTICE GORSUCH: I -- I -- I understand that. I appreciate that, but you also appreciate that we're --

MR. DREEBEN: Yes.

JUSTICE GORSUCH: -- writing a rule for --

MR. DREEBEN: Yes.

JUSTICE GORSUCH: -- for the ages.

rule of fear

The conservative justices' thrust was that if presidents don't have immunity, they will be vulnerable to prosecution by successor presidents. In that, there's more than a hint of accusation that President Biden has persecuted Trump rather than Trump having brought all on himself by breaking laws. Justice Kavanaugh envisions a future…

"when former presidents are subject to prosecution …it's not going to stop. It's going to — it's going to cycle back and be used against the current president or the next president or — and the next president and the next president after that."

Mind you, that's a Supreme Court justice saying that, out of fear of a hypothetical future of recurring presidential vengeance, not even a president who tried to overthrow an election to keep himself in power should face charges. Better we just let January 6th be forgotten. Justice Alito is of the same mind:

JUSTICE ALITO: All right. Now, if a -- 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?

Dreeben challenged with:

"I think it would be a sea change to announce a sweeping rule of immunity that no president has had or has needed."

And he reminded the justices of their newly espoused doctrine that decisions must accord with the nation's history:

MR. DREEBEN: …I think that we should also consider the history of this country. As -- as members of the Court have observed, it's baked into the Constitution that any president knows that they are exposed to potential criminal prosecution… all former presidents have known that they could be indicted and convicted. And Watergate cemented that understanding.

That is, were there any sort of presidential immunity, President Ford would have seen no need to pardon Nixon.

Liberal justices challenged the notion of immunity with hypotheticals.

JUSTICE SONIA SOTOMAYOR: …If the president decides that his rival is a corrupt person and he orders the military or orders someone to assassinate him, is that within his official acts for which he can get immunity?

MR. SAUER: It would depend on the hypothetical. We can see that could well be an official act…

Justice Elena Kagan asked, “How about if a president orders the military to stage a coup?" Mr. Sauer answered that might well be an official act subject to immunity and that…

"as I'll say in response to all these kinds of hypotheticals, [the president] has to be impeached and convicted before he can be criminally prosecuted."

That's the Trump-law claim that causes wonder why the Court is even considering this preposterous immunity appeal: Total immunity from prosecution for illegal acts taken in a president's official capacity. The one exception: if the Senate surmounts the two-thirds vote hurdle needed for impeachment-conviction that has never been topped in the nation's history.

And it is clearly a deliberately wrong reading of the Constitution that the Trump camp clings to. The Constitution says that if impeached and convicted, the president is still "liable and subject to Indictment, Trial, Judgment and Punishment, according to Law", not that impeachment and conviction are a prerequisite.

The debate revolved around whether an act was official versus private because "in the absolute immunity world" as Justice Ketanji Brown Jackson compartmentalized the conservative position, "if you determine that it's an official act, then the principle is that you get immunity. Is that right?" Sauer answered "Yes". She envisioned the outcome:

JUSTICE JACKSON: If someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority could go into office knowing that there would be no potential penalty for committing crimes, I'm trying to understand what the disincentive is from turning the Oval Office into, you know, the -- the -- the -- the seat of criminal activity in this country… wouldn't there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they're in office?"

She cited hypotheticals more likely than assassination that Georgetown Law Professor Martin Lederman listed in an amicus brief. Under immunity,

"A president would not be prohibited by statute from perjuring himself under oath about official matters; from corruptly altering, destroying, or concealing documents to prevent them from being used in an official proceeding; from suborning others to commit perjury; from bribing witnesses or public officials…

and "he goes on and on" said Jackson, "about the things that a president in office with the knowledge that they have no criminal accountability would do."

Ultimately, the immunity advocates found it important to sort out official versus private acts. Justice Amy Coney Barrett had attorney Sauer admitting that several of the post-2020 election actions by Trump were for his private gain and not of his official duties, which gave the liberal side of the bench some hope that she might side with them.

In a long dialogue with Dreeben, Justice Jackson (outstanding throughout) asked why, If petitioner (Trump) is asking for absolute immunity, is the Court parsing public vs. private, within vs. outside the president's constitutional Article II "core" powers?

JUSTICE JACKSON: [M]y understanding is that what is being avoided … is the question of whether a former president or, you know, can be held criminally liable for doing the alleged act that is being asserted in [the criminal] statute… So, if we were going to do this kind of analysis, try to figure out what the line is, we should probably wait for a vehicle that actually presents it in a way that allows us to test the different sides of the -- the standard that we'd be creating, right?

MR. DREEBEN: I don't see any need in this case for the Court to embark on that analysis.

She could have bluntly asked: What is the Court doing, why isn't it dealing only with the case in front of it, the guy charged with conspiracy to defraud the United States and block the transfer of the presidency to the newly elected Mr. Joseph R. Biden Jr.?

The legal pundits expect that the Court will simply remand (return) the case to either the appellate or trial court to sort out what's private and can be used in a trial so delayed that it likely will never take place. But were they not paying attention to Justices Alito, Gorsuch, and Kavanaugh as quoted above? They were promoting immunity. A good bet is that they will pressuring the other conservative justices to go along with a stunning decree that goes well beyond the Constitution and would appall its authors.

The Court will no doubt wait until the very last day of their term at the end of June or the beginning of July to minimize the chance for a pre-election trial.

As recourse, one hope is for Judge Chutkan to hold an evidentiary hearing. All the various players in the coup plot would be subpoenaed to testify, for this would supposedly be a way to get the facts out to the American public, including what further evidence the DOJ unearthed that the House Intelligence Committee hearings two summers ago, lacking subpoena power, could not.

But the right-wing Trump worshippers won't watch just as they didn't watch the House hearings, nor will Fox News, Newsmax and AON cover the district court's hearings.

Half the country refuses to know.

But what we do know is that the Supreme Court has prostituted itself by showing such outright support to Donald Trump no matter what they decide simply by joining Trump's strategy of delay, knowing that once elected, he will have his Justice Department quash the federal cases. We will have a new precedent: Presidents defeated in an election will no longer be prosecuted for trying to disrupt the transfer of power to a newly-elected president by whatever means, including violence.