The Red Court Strikes Again

I'm no lawyer...but they're letting Trump skate.

Yesterday, the Red Court heard—and at least four members broadly agreed with—an argument for an expansion of Presidential power so sweeping, so dangerous, and so fundamental that you might imagine they had been asleep for the last few years.

Did the Supreme Court not notice what happened in 2020 and 2021? Did they miss the lawless conspiracy to deprive millions of Americans of their votes by an illegal scheme masterminded by Trump and his operatives? Or were they out of town on January 6th, when a violent mob attacked the Capitol in furtherance of said conspiracy?

You’ll pardon me; my Cassandra position that no one in the courts or the DOJ is coming to save us is validated. My mystification that it took Merrick Garland two and a half years to start this process that should have begun the moment Joe Biden was sworn in will likely never be resolved.

I listened to and read through most of yesterday’s hearing, and I won’t soft-pedal this. I think the Supreme Court will delay Trump’s case and then make the most cataclysmic legal mistake in American history.

We’re not talking Dred Scott bad, Plessy bad, and Korematsu bad.

We’re talking about previously unimagined levels of bad.

If you care about our representative democracy and limiting the powers of the state, the arguments we heard yesterday should put you on high alert.

What’s The Rush?

The justices' lack of urgency is a feature, not a bug.

While they know this isn’t some fine-grained legal circle-jerk on an obscure point of regulatory interpretation that can wait, they…don’t…care. This is a case with the most serious implications for the Republic based on actions taken by the former President, which has the most direct weight in the current campaign, and their answer appears to be “whatevs.”

The New York Times caught the tone:

There did not seem to be a lot of urgency among the justices — especially the conservative ones — to ensure that the immunity question was resolved quickly. That left open the possibility that Mr. Trump could avoid being tried on charges of plotting to overturn the last election until well after voters went to the polls to decide whether to choose him as president in this election.

And if he is elected, any trial could be put off while he is in office, or he could order the charges against him dropped.

What screamed out loud and clear was that the Supreme Court will let Trump skate on this case. They will send it back down to either the District Court or the Court of Appeals to “work out the issues,”…which means this case dies.

Their lackadaisical approach to resolving the question of immunity smells of the raw and ripe politics of the moment. The Court knows that its decision to delay hearing the case until now has already removed four months of the trial from the calendar. They know that further remands are dilatory.

And frankly, at least five of them seem just fine with that. With the tacit connivance of the Court’s conservatives, Trump's objective was always to delay and delay and delay. “You can’t try me now…it’s election season!”

The Constitution charges the Judicial Branch and the Supreme Court with considering this kind of pendant, vexing, and weighty legal question.

But hey…what’s the hurry?

The New Framework of Power

What concerns me most is the possibility of a wild recalibration of the relationship between the three branches of government.

Listening to the court today, I realized that the headlines covering the hearing were largely wrong. This wasn’t a Court majority looking to limit or define presidential immunity but rather to expand executive power.

Behind the posturing about “bold action” in the executive — a matter long covered since Federalist 51 were hints the Court was ready to extend a black-robed middle finger to most notions of limiting executive power.

Samuel Alito seemed almost aggressively snide when he said, “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?”

This tautological horseshit is an illustration of the brain-melting position of the “absolute immunity” Supreme Court crowd. The false dilemma he presents greases itself up for a ride down a slippery slope that presumes all future Presidents are as morally broken as Donald Trump and will universally ignore the rule of law.

It posits a vague and dangerous cycle of imaginary consequences. The presumption is that without sweeping immunity, all future Presidents — and former Presidents alive today — would fall victim to politicized state and Federal prosecutors for the most trivial of actions.

The very fact that Trump attorney D. John Sauer answered a series of questions about the President’s legal ability to assassinate a rival or to stage a coup with the expansive, maximal view that essentially echoed the Nixonian “If the President does it, that makes it legal” argument was outrageous enough.

Justice Samuel Alito, who was perfectly comfortable with wild hypotheticals in his argument that without immunity, all Presidents would devolve into criminals, took exception to the idea that SEAL Team 6 would obey the orders of a President to kill a rival, even though this was the second time Sauer had expressed precisely that argument.

Any nation where the chief executive has the power to kill his political opponents under the color of office without fear of prosecution isn’t a nation governed by law, justice, and democratic principles.

While even some of the conservatives on the Court seemed to vaguely push back on the argument Sauer presented on absolute immunity, when we’re talking about Presidential immunity that still allows the President to order people killed, it’s new and dangerous territory.

I’m not a lawyer. I don’t have their deeply wired understanding of Constitutional and case law concerning Presidential power, but I do understand power and people.

l understand politics and politicians deep in my DNA.

I’ve lived and breathed that world my entire adult life, helping put ambitious people in a position where they can exercise power, hopefully for good, but if we’re honest…not always. I’ve elected some great men who were not good men.

I’m afraid the majority also knows this will inevitably expand executive power in dark and unpredictable ways. The temptations will never come from a lack of criminal immunity but from the presence of sweeping immunity.

While Presidents are, I think rightly, largely immune from civil litigation for actions taken under the “outer perimeter of their duties” argument, we’ve been fortunate to have criminal presidents only rarely. In the modern era, Richard Nixon and Donald Trump engaged in inarguably criminal behavior in office. Nixon paid a price — perhaps not a large enough price, but a price nonetheless.

Trump abused power before. He engaged in criminality at a scale — to use the Trumpian term of art — no one has ever seen before.

Lord Acton wrote, “Despotic power is always accompanied by corruption of morality.” He was right. We watched as an amoral, corrupt, and lawless President tried to seize despotic power. He failed, but only by providence, luck, and the frailty of his imaginary case.

The Court knows that sending this case back down to lower courts denies the American people justice in any meaningful sense for Trump’s corrupt and criminal acts in the wake of the 2020 election. They know if he is re-elected, he will abuse power again.

And this time, nothing will stop him.

Justice Ketanji Brown Jackson asked during the hearings, “If there’s no threat of criminal prosecution, what prevents the president from just doing whatever he wants?”

What, indeed?