Before the Supreme Court for Republicans Of The United States – SCROTUS – held arguments April 25 on Viceroy Trump’s theory of absolute presidntial immunity, it was assumed by Conventional Wisdom that the conservative, one-third Trump appointee court would seek to tactically delay a decision so that federal trials against him could not proceed before the election, but ultimately would not give him a win.
Now, people aren’t so sure.
San Francisco Chronicle: “Justices Neil Gorsuch and Brett Kavanaugh, two of Trump’s three high court appointees, and (Samuel) Alito said their concern was not the case against Trump, but rather the effect of their ruling on future presidencies.
“Each time Justice Department lawyer Michael Dreeben sought to focus on Trump’s actions, these justices jumped in. “This case has huge implications for the presidency, for the future of the presidency, for the future of the country,” Kavanaugh said. The court is writing a decision “for the ages,” Gorsuch said.
“Justice Amy Coney Barrett, the other Trump appointee, seemed less open to arguments advanced by Trump lawyer D. John Sauer, searching for a way a trial could take place.”
Bloomberg: “Alito offered some support for Trump’s legal arguments, saying it could be destabilizing if presidents are concerned they’ll be criminally prosecuted when they leave office.
“A stable democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office peacefully,” Alito said. He questioned whether presidents will now fear they’ll be “criminally prosecuted by a bitter political opponent” rather than going into a “peaceful retirement.”
“Will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?” Alito asked.
Alito and Clarence Thomas are both very old guys and would probably like to retire, but only if they can make sure that their replacements would be conservatives, and conservatives of their ilk. So even if an “absolute immunity” decision would end up undermining their own authority, they will probably support it so that they can ensure their effective dynasty is continued, which it would not be if they died with President Biden (or Harris) in charge. The result would be “Our Lord Trump will reign o’er us forever and ever, because we, the Supreme Court, will protect him.”
That seems to be the art of this deal.
The problem at that point is that America would no longer be America.
At that point, we would not have rule of law any more, we would have rule by the biggest gang. The thing that the Wittgenstein of Witlessness doesn’t seem to get is that the Right is not the biggest gang. And you would think that Alito and Thomas would be smart enough to know that, but apparently not.
Several former military commanders filed an amicus brief on this case, summarized somewhat by an article by Ray Mabus, former Secretary of the Navy: “Imagine a large group of activists assembled outside the White House, peacefully protesting a recent decision by the president. They are waving signs denouncing the new policy, holding banners demanding change and chanting slogans about that president. As their numbers begin to swell, as their voices grow louder, the president issues an order to military commanders: Take them out.
“Our military leadership would then be faced with an impossible choice. They’d either have to follow the clearly unlawful order of their commander in chief, and commit crimes for which they could be prosecuted, or openly defy that order.
“This is not a far removed hypothetical, but a very real choice service members could face if the president of the United States is immune from criminal prosecution. “
Trump is assuming that once he gets in charge and appoints himself dominus et deus, he will be invincible because civilian resistance could not stand against the US military. But that assumes all of the military will stand with him. When they, and our NATO allies, now know that he thinks soldiers are suckers and he insists on being Putin’s little bitch.
This demand to the Court also rests on a critical flaw. As I have said, the weakness of this Roman-inspired republic is that like Rome, it grants more and more power to the executive rather than the Senate, which increasingly can’t get anything done. As a result, we have assumed the president to have more authority than he strictly has under the Constitution. War making powers, for instance. The assertion of the normie culture has been, “the President can do anything he wants, cause he’s the President.” Which is now Donald Trump’s best justification for his lifelong belief that “Donald Trump can do anything he wants, cause he’s Donald Trump.”
And while his lawyers may insist that while their argument in the abstract hypothetically applies to ANY president, it’s very easy to bring the matter back to reality. Trump is asking for absolute power. He’s saying, “The King can do whatever he likes”, but he’s NOT the King. Common sense (which granted seems to be in short supply at the Alito Court) indicates that the ruling doesn’t apply to just Trump. Ask these people if all these hypotheticals they are blithely discussing would apply in the abstract to Joe Biden.
Could Joe Biden order somebody to ice Donald Trump?
Could Joe Biden order a crackdown on right-wing media ranging from Reason Magazine to Newsmax?
Could Joe Biden, the day after presidential immunity was created by SCOTUS, then immediately declare Dobbs v. Mississippi to be null and void and sign an executive order making the previous Roe v. Wade standard nationwide again?
I think we all know how Chief Justice Alito would react to that hypothetical.
Because even if nobody in this case is arguing that the President’s authority allows him to destroy the balance of powers and nullify a SCOTUS ruling, what would THEY be able to do about it, if they themselves have declared that anything the president does cannot be prosecuted (short of impeachment and removal from office, which would require a two-thirds vote of the Senate, including Democrats, meaning, IT’S NEVER GOING TO HAPPEN), just as long as he says the two magic words “official act“, which will strike him with a lightning bolt and give him superpowers?
Memo to Future Fascists: Don’t declare absolute power until you actually HAVE it. Like that nice Hitler boy, he knew what he was doing.
Which is why when you listen to some of these talking heads, you’re getting an assessment: The three liberal justices will not vote for Trump, Thomas (who of course has not recused himself in a case where he has personal interest) will certainly vote for Trump, Alito is at least 90 percent likely to vote for Trump, Neil Gorsuch is at least 50 percent likely to vote for Trump, which leaves Brett Kavanaugh, Amy Comey Barrett and nominal Chief Justice John Roberts as the balance, and while they seemed ambiguous, they also don’t seem to be totally on Trump’s side. So the thinking now is, “Of all the nine justices, Gorsuch appeared to be steering his like-minded colleagues toward a decision that could result in sending the 2020 subversion case back to the district court in Washington for more hearings with instructions about what acts constitute official or private actions.” That would of course, still be a delay, and would definitely drag things out past the election, but that would also mean that SCROTUS wouldn’t have to worry about giving President Biden absolute immunity. So at least somebody‘s thinking ahead.
But even entertaining this mishegoss demonstrates the emotion and illogic of the Alito Court, which in attempting to decide a matter once and for all for their side just ends up creating a bigger rats’ nest. This same week, the Court held arguments on a State of Idaho law that forbids abortion for any reason other than the potential death of the mother, leading, among other things, to 55 percent of OB-GYNs in Idaho leaving the state for fear of being prosecuted if the government rules against their medical decisions. A possibility that could not have occurred without Dobbs vs. Mississippi. In that decision, Chief Justice Alito ruled that a national right to abortion did not exist because there is no affirmative precedent for it, even though this opinion had to assert a position not only against stare decisis but the wording of the Fourteenth Amendment, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”. So there should be no right to abortion because it isn’t positively stated in the Constitution. But there should be a right to presidential immunity when there’s nothing in the Constitution on that subject one way or another? Because it’s never come up before? Because nobody other than this particular subject forced the issue before, unless you count Nixon, which brings up the question that Justice Ketanji Brown-Jackson asked Trump’s attorney D. John Sauer, “What about the pardon?”
Mr. Sauer asserted for his client that the president must have absolute immunity from prosecution or the office will be crippled, raising the question of why no other president, including Richard Nixon or Bill Clinton, have made such an argument in the face of investigation. It is telling how much the republic has deteriorated that no president before Trump would make such an argument, and no other Supreme Court would take it seriously.
To assert, okay, maybe we shouldn’t let this obviously compromised and senile Russian asset have complete immunity but maybe the president in the abstract deserves some level of privilege for “official acts” is to assert a presidential power that never existed in the letter of law and was assumed not to exist in the spirit of the law, prior to a largely Trump-appointed Court. If such privilege were granted, would that lead to Mr. Alito getting more, or less, legal hassles in future cases?
Maybe … they shouldn’t give the president that privilege.
This is the judiciary, not the legislature. To create an interpretation beyond both the wording and spirit of the original law is effectively legislating from the bench. Which I thought “conservatives” were against. They should just stick to the script and what it says.
What is the term for that? Textualism? Strict constructionism? Constitutionalism?
Gee, if only we had a conservative Supreme Court that operated on that philosophy!