King Donald and His Court
Three shocking takeaways from last Thursday’s oral arguments before the Supreme Court on Donald Trump’s claim of total immunity from prosecution for acts done as president:
1). First, the stunning moment when a lawyer stood before the nation’s highest court and said a president could order the assassination of a rival and the action would be immune because it was an “official act.” Equally stunning, several justices seemed to think that a plausible assertion.
2). Second, the conservative justices — who run this court — showed more concern for possible future threats to democracy and stability than for the issue before them, the former president’s attempt to subvert democracy after losing the 2020 election and the U.S. government’s efforts to hold him accountable.
3). Third, continuing proof that previously determined political outcomes (see recent decisions on abortion and gun control), rather than judicial reasoning, guide the conservative justices’ interpretations of the Constitution and law.
It is truly breathtaking how unoriginal(ist) the self-described originalists can be when the original intentions of the Founders, which the originalists claim to know and apply, contradict the preferred result of the originalists.
On the first point: I would ask the conservatives one question: What if a president ordered their assassination because their rulings displeased the occupant of the White House? Perhaps, the justices believe they are so far removed from politics that their safety would never be at issue. But, I would submit, President Donald Trump — in a possible second term — would not make such subtle distinctions. To Trump, everyone in his way is a rival and disposable. (Joyce Vance, in a posting on on her Civil Discourse blog, made this point: That a president with absolute immunity could act against the judiciary.)
On the second point: Justice Samual Alito said: “I am not discussing the particular facts of this case.” (Note: All verbatim quotations from the justices can be found in the transcript posted by the Supreme Court.) Justice Brett Kavanaugh agreed: “I am not talking about the present case.”
Well, if the case before the Supreme Court was not the issue, what was? The future, apparently. The conservatives were more worried about the possibility that a president down the road might refuse to leave office out of concern that his successor might use the criminal law to prosecute him. Never mind that no defeated incumbent in the history of the American Republic ever refused to leave office, before Donald Trump. And never mind that no incumbent presidents have used the law to prosecute their predecessors. (That, by the way, includes President Joe Biden, who has left the prosecution of Donald Trump in the hands of the special prosecutor, with whom Biden has no contact. Biden, like the rest of us, heard about Trump’s indictments from news reports.)
The conservative justices were, to put it bluntly, turning democracy upside-down. Alito focused, with almost laser-like vision, on future threats to democracy. “I’m sure you would agree with me that a stable democratic society requires that a candidate who loses an election — even a close one, even a hotly contested one — leave office peacefully, if that candidate is the incumbent,” Alito asked the Special Counsel’s lawyer. “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?”
Wait a second Mr. Justice! If we are not a stable democracy when a person who loses an election refuses to leave office, then have we not crossed that line already? Is that not what President Trump did in 2020-2021? He is the president who refused to leave office, not some hypothetical future president. Why focus on a future tyrant when there is a tyrant already in our midst?
The answer to that question brings me to the third point: The conservative justices have a political agenda, which in the narrow sense, is to keep Trump out of jail so that he can run for president again. We saw that in the decision by the Supreme Court to allow Trump on the ballot in Colorado, despite the Fourteenth Amendment’s clause clearly disqualifying insurrectionists from holding office. We see that in the refusal of Justice Thomas to recuse himself despite his wife’s participation in the attempt to overturn the results of the election. And, we see that in the tenor of the questions, arguments, and hypotheticals advanced by the conservative justices last Thursday.
There is a broader motive at play here as well, and that is the wish by conservatives to use Trump as a vehicle to impose their theory of the proper functioning of the federal government — the “unitary executive theory" — on the nation. (I have written about this before.) This theory holds that Congress cannot limit the president’s control of the executive branch. The president has, so advocates of the concept maintain, unlimited power to appoint and remove federal officials. (We should take seriously Trump’s promise to purge the Civil Service if reelected.) ThbaThe theory denies Congress the right to create executive agencies and to exert any oversight function. Essentially, under the “unitary executive theory,” the president becomes first among equals and the executive branch trumps the legislative and judicial branches.
Former Attorney General William Barr is a leading supporter of this theory of an all-powerful executive, which explains his seemingly inexplicable position that he supports Trump for president over Biden despite believing that Trump tried to subvert the peaceful transfer of power in 2020. And, crucially for our purposes here, so do many of the justices on the Supreme Court.
Justice Alito is a key player in the evolution of the unitary executive theory. In 1986, as a young lawyer in the Justice Department, Alito suggested the use of “signing statements,” as a way for the president to take from Congress the sole power to make laws. When issuing a signing statement, the president approves an act of Congress, but reserves to the chief executive the power to “interpret” what Congress meant. President Ronald Reagan used a signing statement in approving a debt bill, declaring he would interpret the bill as he wished and asserting that the president could not be forced “to follow the orders of a subordinate.” President George W. Bush issued a signing statement rejecting limits on “the unitary executive branch.” And, in 2020, President Trump declared: “When somebody is the president of the United States, the authority is total.”
I doubt whether there is a majority on the Supreme Court in favor of ruling that the president has unlimited immunity from prosecution for illegal acts. But, I suspect that the Court ultimately will rule in favor of some level of immunity. Even that would be a novel interpretation of the Constitution, for nothing in the document suggests that there is a concept of presidential immunity. As Justice Elena Kagan, one of the liberals on the bench, asked during oral arguments: “Wasn’t the whole point [of the American Revolution] that the president was not a monarch and the president was not supposed to be above the law?”
The Founders answered with a resounding yes, the president is not a monarch and not above the law! But King Donald will reverse that answer, if given a chance. And his chances have received a big boost from a Supreme Court that continues to delay his prosecution, virtually guaranteeing that the federal cases will not go to trial before the election.
After that, King Donald will make it all moot! And the American Revolution will never have happened!
Posted April 30, 2024