Even Without Trump Present: Odor In The Court! Oder In The Court!

Can you feel the anger emanating from college campuses. If the Supreme Court agrees that a president— or at least one named Trump— is permitted under the Constitution to assassinate his opponents with alacrity… and immunity, the Gaza genocide demonstrations will be remembered as the peaceful days. I don’t see the Supreme Court flushing whatever credibility they still have down the toilet by doing that. What I do see them doing is to continue dragging out teh process so that Trump doesn’t go on trial for his coup attempt before the election.

Dahlia Lithwick and Mark Stern said that a lot more elegantly on Thursday: “For three long years, Supreme Court watchers mollified themselves (and others) with vague promises that when the rubber hit the road, even the ultraconservative Federalist Society justices of the Roberts court would put democracy before party whenever they were finally confronted with the legal effort to hold Donald Trump accountable for Jan. 6. There were promising signs: They 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. On Thursday, during oral arguments in Trump v. United States, the Republican-appointed justices shattered those illusions. 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. These justices fear that it is Trump’s prosecution for election subversion that will ‘destabilize’ democracy, requiring them to read a brand-new principle of presidential immunity into a Constitution that guarantees nothing of the sort. 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. However the court disposes of Trump v. U.S., the result will almost certainly be precisely what the former president craves: more delays, more hearings, more appeals— more of e everything but justice.”

Michael Tomasky predicated what a monstrosity Trump would be before hi first day in the Oval Office was done. And part of that monstrousness was the kind of garbage he put on the court— including, of course, the Supreme Court. “When I wrote seven years ago that we rested our hope on conservative judges who will choose our institutions over Trump, trust me, I wasn’t saying I was confident that they would. I was terrified that that day would eventually come. It came yesterday. The conservative jurists chose Trump. It will stand as one of the blackest days in Supreme Court history.”

And that brings us to a piece Adam Serwer wrote that law school students may be asked to read a century from now: The Trumpification of the Supreme Court. The notion that Donald Trump’s supporters believe that he should be able to overthrow the government and get away with it sounds like hyperbole, an absurd and uncharitable caricature of conservative thought. Except that is exactly what Trump’s attorney John Sauer argued before the Supreme Court yesterday, taking the position that former presidents have ‘absolute immunity’ for so-called official acts they take in office. ‘How about if a president orders the military to stage a coup?’ Justice Elena Kagan asked Sauer. ‘I think it would depend on the circumstances whether it was an official act,’ Sauer said after a brief exchange. ‘If it were an official act… he would have to be impeached and convicted.’” The extremists on the Supreme Court seem to have liked the cut of his jib.

“Trying to overthrow the Constitution and subvert the peaceful transfer of power is not an official act, even if you conspire with other government employees to do it and you make phone calls from the Oval Office,” Michael Waldman, a legal expert at the Brennan Center for Justice, a liberal public-policy organization, told me.

Trump’s legal argument is a path to dictatorship. That is not an exaggeration: His legal theory is that presidents are entitled to absolute immunity for official acts. Under this theory, a sitting president could violate the law with impunity, whether that is serving unlimited terms or assassinating any potential political opponents, unless the Senate impeaches and convicts the president. Yet a legislature would be strongly disinclined to impeach, much less convict, a president who could murder all of them with total immunity because he did so as an official act. The same scenario applies to the Supreme Court, which would probably not rule against a chief executive who could assassinate them and get away with it.

The conservative justices have, over the years, seen harbingers of tyranny in union organizing, environmental regulations, civil-rights laws, and universal-health-care plans. When confronted with a legal theory that establishes actual tyranny, they were simply intrigued. As long as Donald Trump is the standard-bearer for the Republicans, every institution they control will contort itself in his image in an effort to protect him.

The Supreme Court, however, does not need to accept Trump’s absurdly broad claim of immunity for him to prevail in his broader legal battle. Such a ruling might damage the image of the Court, which has already been battered by a parade of hard-right ideological rulings. But if Trump can prevail in November, delay is as good as immunity. The former president’s best chance at defeating the federal criminal charges against him is to win the election and then order the Justice Department to dump the cases. The Court could superficially rule against Trump’s immunity claim, but stall things enough to give him that more fundamental victory.

If they wanted, the justices could rule expeditiously as well as narrowly, focusing on the central claim in the case and rejecting the argument that former presidents have absolute immunity for acts committed as president, without getting into which acts might qualify as official or not. Sauer also acknowledged under questioning by Justice Amy Coney Barrett that some of the allegations against Trump do not involve official acts but private ones, and so theoretically the prosecution could move ahead with those charges and not others. But that wouldn’t necessarily delay the trial sufficiently for Trump’s purposes.

“On big cases, it’s entirely appropriate for the Supreme Court to really limit what they are doing to the facts of the case in front of it, rather than needing to take the time to write an epic poem on the limits of presidential immunity,” Waldman said. “If they write a grant opinion, saying no president is above the law, but it comes out too late in the year, they will have effectively immunized Trump from prosecution before the election while pretending not to.”

Trump’s own attorneys argued in 2021, during his second impeachment trial, that the fact that he could be criminally prosecuted later was a reason not to impeach him. As The New York Times reported, Trump’s attorney Bruce Castor told Congress that “after he is out of office,” then “you go and arrest him.” Trump was acquitted in the Senate for his attempted coup after only a few Republicans voted for conviction; some of those who voted to acquit did so reasoning that Trump was subject to criminal prosecution as a private citizen. The catch-22 here reveals that the actual position being taken is that the president is a king, or that he is entitled to make himself one. At least if his name is Donald Trump.

Democracy relies on the rule of law and the consent of the governed— neither of which is possible in a system where the president can commit crimes or order them committed if he feels like it. “We can’t possibly have an executive branch that is cloaked in immunity and still expect them to act in the best interests of the people in a functioning democracy,” Praveen Fernandes, the vice president of the Constitutional Accountability Center, a liberal legal organization, told me.

The only part of Trump’s case that contains anything resembling a reasonable argument is the idea that without some kind of immunity for official acts, presidents could be prosecuted on a flimsy basis by political rivals. But this argument is stretched beyond credibility when it comes to what Trump did, which was to try repeatedly and in multiple ways to unlawfully seize power after losing an election. Even if the prospect of presidents being prosecuted for official acts could undermine the peaceful transfer of power, actually trying to prevent the peaceful transfer of power is a much more direct threat— especially because it has already happened. But the Republican-appointed justices seemed much more concerned about the hypothetical than the reality.

“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,” Justice Samuel Alito asked, “will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?”

Trump has the conservative justices arguing that you cannot prosecute a former president for trying to overthrow the country, because then they might try to overthrow the country, something Trump already attempted and is demanding immunity for doing. The incentive for an incumbent to execute a coup is simply much greater if the Supreme Court decides that the incumbent cannot be held accountable if he fails. And not just a coup, but any kind of brazen criminal behavior. “The Framers did not put an immunity clause into the Constitution. They knew how to,” Kagan pointed out during oral arguments. “And, you know, not so surprising, they were reacting against a monarch who claimed to be above the law. Wasn’t the whole point that the president was not a monarch and the president was not supposed to be above the law?”

At least a few of the right-wing justices seemed inclined to if not accept Trump’s immunity claim, then delay the trial, which would likely improve his reelection prospects. As with the Colorado ballot-access case earlier this year, in which the justices prevented Trump from being thrown off the ballot in accordance with the Constitution’s ban on insurrectionists holding office, the justices’ positions rest on a denial of the singularity of Trump’s actions.

No previous president has sought to overthrow the Constitution by staying in power after losing an election. Trump is the only one, which is why these questions are being raised now. Pretending that these matters concern the powers of the presidency more broadly is merely the path the justices sympathetic to Trump have chosen to take in order to rationalize protecting the man they would prefer to be the next president. What the justices— and other Republican loyalists— are loath to acknowledge is that Trump is not being uniquely persecuted; he is uniquely criminal.

This case— even more than the Colorado ballot-eligibility case— unites the right-wing justices’ political and ideological interests with Trump’s own. One way or another, they will have to choose between Trumpism and democracy. They’ve given the public little reason to believe that they will choose any differently than the majority of their colleagues in the Republican Party.