Introduction
Even before the ink was dry, people started arguing about what the Constitution meant. But having just thrown off the yoke of monarchy — and fought for political representation — few early Americans would have argued that the document allowed substituting one tyranny for another. Tomorrow, the US Supreme Court will listen to Trump’s lawyers make the case that the risk of tyranny was acceptable to the Founders.
Background
Trump is on trial in the DC Federal District Court for attempting to deny the voters their right to pick their President. In 2020, Joe Biden overcame the built-in bias of the Electoral College, and the sustained attempts by Republican legislatures to disenfranchise Democratic voters, to win the election by 7 million votes.
Federal and state courts affirmed the election's legitimacy multiple times. Trump’s B-team of legal zealots tried 62 times to change the result. They lost 61 times. The one they won was a meaningless procedural victory in PA.
The 2020 loser could not accept he was a loser. Infamously, he encouraged his MAGA followers to march on the Capitol to prevent VP Mike Pence’s pro-forma count of the Electoral College votes.
Courts have convicted almost 900 of those rioters for their role in the attempted insurrection — and sentenced 467 to jail. Those followers discovered that they were not above the law. Their idol is determined not to be among their number.
The District Court denied Trump was special. The DC Appeals Court agreed he was no better than any other American. But the Supreme Court chose to take up the question. And set a leisurely pace for briefs and oral arguments. Finally, on Thursday, they will deign to listen to those arguments.
Meanwhile, as the issue festered for five months, Trump’s trial was dead in the water. And will remain dormant until SCOTUS issues its decision.
The Supreme Court
In arguing that Trump had immunity for his actions between the November 2020 election and the January 2021 storming of the Capitol, Trump’s legal team is essentially conceding that Trump did conspire to:
- defraud the United States
- obstruct an official proceeding (x2)
- against rights (to vote)
Their position is that Trump could commit crimes without penalty because, as President, he had absolute immunity — based on the Constitution, case law, commentary, precedent, and tradition — to do whatever the feck he pleased. The law be damned.
Jack Smith and his team of prosecutors countered that it was a legally unfounded proposition that, as President, Trump was free to commit whatever crimes he cared to. And rational Americans are gobsmacked that there is even a doubt that the President has to follow the laws he swore to uphold.
But when you have a Supreme Court where the criminal (petitioner) has picked three of the Justices (Kavanaugh, Gorsuch, Barrett) — and two others (Thomas, Alito) are fascism enablers — there is no guarantee that they will do the right thing.
They do not even have to decide in Trump’s favor for them to hand him a win. They can hear arguments tomorrow and sit on their decision until it would be too late to try Trump before the election. If Trump won, he could tell the DOJ to drop the matter. And anyone who thinks that he would willingly leave the White House in 2029 is deluded.
Trump’s argument
Trump’s lawyers have argued various reasons for Trump’s stay-out-of-jail-free card. Their main legal argument is that the Constitution requires a President to be first impeached by the House and convicted by the Senate for him to face criminal charges after his term ends.
They also say that a President facing the possibility of criminal prosecution would be too scared to do their job. And once out of office, they would be hounded by their political opponents in perpetuity. In addition, they claim that Biden is behind the attempt to hobble his 2024 rival. And that no President has ever faced prosecution before.
It is all bullshit. Nixon could have been charged for his Watergate crimes until Ford pardoned him. This absolution raises the question, why was a pardon necessary if a President has absolute immunity? Bill Clinton also reached a deal to avoid prosecution for lying under oath. Why bother if he had immunity?
As for Presidents hamstrung in office and hounded afterward, that has never happened. Why not? Because, besides Nixon and Clinton, no other President was seriously accused of a crime while doing their job.
And, as this whole saga proves, if they had been, they would have had all the legal protections Trump has enjoyed. Dear God, the Supreme Court is entertaining his totalitarian impulses. How much more proof does a citizen need that American Justice does not allow show trials?
Those will only occur if SCOTUS allows Presidents to have absolute immunity.
Conclusion
I like to think the Supreme Court is pro-democracy. Until 2016, I believed it was. Today, I am not so sure. They have one chance to show they are. They can deny presidents have absolute immunity. And render their decision in weeks, not months. I am not holding my breath.