And Alito Will Always Be There For Him
Trump has spent his life evading accountability and he has plenty of plans to keep right on keepin’ on. One route is his puppet Supreme Court that may rule against him when it doesn’t matter much, but that will always be there for him when it does. To say the court is dysfunctional and antithetical to American democracy is like saying cancer is unhealthy. This week we heard crooked insurrectionist Sammy Alito try blaming his wife for the upside down flag— a fascist symbol— for flying outside his home for days after the J-6 insurrection. Many have called on his to recuse himself; that’s not going to happen.
On Friday, Adam Serwer took a closer look at the pile of treasonous puke that is Justice Alito. Serwer reported that Alito told the NY Times that he “‘had no involvement whatsoever in the flying of the flag… It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.’ A Fox host later reported that ‘the neighbor put up a sign personally addressing Mrs. Alito and blaming her for the Jan 6th attacks.’ Even accepting that this is true and that Alito’s neighbor was behaving rudely, signaling support for an insurrection is an odd way to respond to someone accusing you of supporting an insurrection.”
Alito’s statement is notable because, as the Times reporter Michael Barbaro pointed out, it does not deny that the flag was flown in solidarity with the insurrectionists. It also does not disavow the insurrectionist claim that the 2020 election was stolen, and it does not condemn the Trump-directed attempt to overthrow the constitutional order that Alito has sworn an oath to uphold. Nor do the subsequent statements to Fox purporting to explain the flag’s presence. Alito is also not the only justice whose spouse seems to have supported Trump’s failed coup. The congressional investigation into the events of January 6 showed that Virginia Thomas, a conservative activist and the wife of Justice Clarence Thomas, tried to persuade Arizona Republicans to overturn the result in their state. Justice Thomas was later the only dissenting justice in a ruling that allowed Congress to access Trump-era presidential documents related to the Capitol riot.
That raises the most important issue here, which is that Alito and Thomas sit on the nation’s highest court and are poised to rule on matters related to Trump’s attempts to unlawfully hold on to power. In one case, they already have—deciding that the Constitution’s ban on insurrectionists holding office does not disqualify Trump from running for president. The Court is set to rule on a challenge to a federal law used to prosecute the January 6 rioters, and in another case about Trump’s claim that former presidents have “absolute immunity” to prosecution for crimes committed as “official acts” in office. The 6–3 right-wing majority has made its partisan lean unmistakable. But there is still a difference between an ideologically conservative, or even partisan, Court and one with sitting justices whose worldview is so deranged by fanaticism that they would prefer the end of constitutional government to a president from the rival party.
The most charitable interpretation of Alito’s non-disavowal of the upside-down flag and its meaning is that, because the Court has several forthcoming cases related to Trump’s actions, he wanted to avoid expressing an opinion beforehand. Justices do typically try to avoid opining publicly on matters that come before them, and to avoid the appearance of partisanship, even if they do not always succeed. Perhaps this really was what Alito was thinking when he gave that statement to the Times. The flaw in this defense is that Alito is as shy about sharing his political opinions as a street preacher is in predicting the apocalypse.
In 2020, Alito warned that liberals were a threat to free speech. In 2021, he attacked the media for correctly reporting that the Supreme Court had nullified the right to an abortion in Texas by upholding the state’s abortion-bounty law, and was poised to overturn that right in the rest of the country. In 2022, he mocked those who criticized his ahistorical ruling in the Dobbs case, which has led to a patchwork of laws that subject women to a gender-based regime of state force and surveillance. In 2023, he ran to the Wall Street Journal editorial page to defend himself after reporters uncovered his cozy relationship with a right-wing billionaire. A few days ago, he warned that “support for freedom of speech is declining dangerously, especially where it should find deepest acceptance,” only he was echoing ubiquitous right-wing rhetoric about liberals on college campuses, not reflecting on Republican-controlled states engaging in a massive campaign of outright censorship. And despite all of these public statements attacking the left, particularly on matters of free speech, Alito has amassed a jurisprudential record suggesting that his interpretation of the First Amendment confers a right to monologue on those who share his beliefs.
So Alito is no shrinking violet when it comes to his politics. He is very comfortable expressing his political views outside the Court when he feels like it, which is often. If he has discovered the value of the norms of discretion and propriety observed by some of his colleagues, it is a very recent occurrence, as in there hasn’t been enough time for an avocado sitting on a kitchen counter to spoil.
Alito’s apparent sympathy for the insurrectionists should probably not come as a surprise. The right-wing justices are not immune to pressure from their social circles, and minimization or outright endorsement of the January 6 riot became more common and mainstream as Republicans realized that they were stuck with Trump as their standard-bearer. (A man who covets the powers of a dictator is preferable to a Democrat, after all.) The justices, like most partisans, shift with their party’s preferences, and, with rare exceptions, their jurisprudence reflects that. In recent oral arguments related to January 6, Alito’s statements were exactly in line with that shift.
…[Alito’s] jurisprudence is one that often hinges on his sympathy—or lack thereof—for one of the parties. That much was already clear before the Times reported that the Alitos offered a symbolic gesture of public sympathy for the rioters. What the flag revelation does is offer potential insight into Alito’s interpretation of the events of January 6, and the approach he has taken to the related matters that have come before the Court since. How Alito votes in these upcoming cases will inevitably be colored by this apparent embrace of Trump’s falsehoods about voter fraud, which led to the first and only attempt by a sitting president to prevent the peaceful transfer of power.
One cannot say for certain that Alito has approached these matters the way he has because he supported Trump’s attempted coup. What we can say is that it is not unreasonable to ask whether a pro-insurrectionist justice sits on the nation’s highest court.
And speaking of court, would you take a bet— even with heavy odds— that Trump will testify? Of course he won’t. He’ll blame his lawyers or the judge or someone for worming out of his public promise to do so. James Fanelli wrote that “Politically, taking the stand might offer Trump the chance to project strength and defiance in the face of a prosecution he has decried as illegitimate.” But no one thinks he will. “Once Trump takes the stand, he turns the trial into a referendum on his credibility and redirects the jury’s attention away from potential weaknesses in the prosecution’s case, said Tama Kudman, a criminal defense lawyer… Every juror has some preconceived notion of him, she said, but Trump’s testimony could compound that impression. ‘He runs a real risk of turning off people, even more than they might be turned off already,’ she said.”
Stormy Daniels in a recent social-media post, after her 2 days of testifying, “all but dared him to take the stand and deny her testimony. The porn star isn’t necessarily a central witness, because the case doesn’t rise or fall on whether she and Trump had an affair. But if Trump chooses to testify, prosecutors are sure to ask him about her claims, as well as about money paid to another woman, the former Playboy model Karen McDougal, who alleged having a monthslong romantic affair with Trump beginning in 2006, which Trump denies. He also could be asked about the columnist E. Jean Carroll, who has alleged that Trump sexually assaulted her in the 1990s. She has won two defamation judgments against him for denying her claims.”
If Trump is convicted and the judge, Justice Juan Merchan, finds that he perjured himself on the stand, that could lead to a steeper sentence.
Trump has sought to leverage the prosecution to rally support for his presidential campaign, alleging that Manhattan District Attorney Alvin Bragg, a Democrat, has brought the case for political reasons. Trump on several occasions has said that he would testify. But in other recent remarks he hedged. Trump claimed incorrectly that a court-imposed gag order prohibited him from testifying, prompting Merchan to state in court that the former president has an absolute right to take the stand. In one interview, Trump said he would testify “if it’s necessary.”
Criminal defendants aren’t obligated to testify at their trials, and juries can’t infer guilt if they don’t. Defense lawyers typically advise their clients not to testify because of the unpredictability of cross-examination.
Trump testified in two recent civil cases; both times were punctuated by outbursts.
New York Attorney General Letitia James called him as a witness in her civil fraud case that alleged he lied about his wealth for financial gain. Trump, on the stand, lashed out at the judge, Justice Arthur Engoron, and hurled insults at James. “It’s a terrible thing you’ve done, you know nothing about me,” Trump told Engoron.
Later in that case, Trump was going to take the stand again as part of his team’s defense presentation, but changed his mind on the eve of his planned appearance.
Engoron ultimately found Trump liable for fraud and ordered him to pay $454 million in financial penalties.
Trump took the stand briefly in one of Carroll’s defamation cases, but testified for all of three minutes. The judge in that case limited what Trump could say because a different jury had already concluded that he sexually abused Carroll. After the short testimony, Trump left the courtroom scowling and said, “This is not America.”
A jury later awarded more than $83 million in damages to Carroll.
In some cases, a defendant’s testimony can be helpful to winning a case, according to lawyers, but the defendant needs to be disciplined and come across as honest. “The last thing you want to do is put a client on the stand who you think is too volatile,” said Anna Cominsky, a New York Law School professor.
Despite the risks and likely warnings from his lawyers, Trump might feel compelled to testify because he is running for president, Cominsky said. “As a politician, he wants to tell his story,” she said. “He wants to use this as an opportunity to talk to his base.”
Some lawyers said Trump should skip testifying because his defense is better off staying focused on potential holes in the district attorney’s presentation.
Jerry Nadler who will be the chair of the Judiciary Committee when the Democrats win back the House, discussed Alito and his SCOTUS colleagues yesterday on The Weekend: “None of them have clean hands. And again, I would say we need two things. We need to enforce a code of ethics. And we need term limits on the Supreme Court… [Alito] should certainly recuse himself from any January 6 related case, from any case related to the to President Trump. Because he’s associated with the ‘Stop the Steal’ movement now whether he wants to be or not.”
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