Scott Gurvey's Public Offerings

There is no doubt anymore. The conservative majority on the United States Supreme Court is dedicated to electing Donald Trump to a second term.

The Trump justices made that clear last week as they considered his extraordinary claim that a president has an absolute immunity from criminal prosecution. The idea seems absurd on its face. A fundamental principal of the United States is that it is a nation of law. The framers of the Constitution, having overthrown one monarch, had no desire to create a new one. There is no evidence in the historical record that they believed a president should be immune from criminal prosecution. Two lower courts carefully considered Trump’s claim and rejected it completely.

“[W]here, say some, is the King of America?” the patriot Thomas Paine wrote in Common Sense, the 1776 pamphlet that convinced British colonists in North America to cut ties with their king and start a new nation. “[I]n America the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.”

Yet four of the conservative justices on the Supreme Court, during oral argument in Trump v. United States, seemed willing to put a crown on Trump’s head. The mere thought is appalling. Justice Samuel Alito, let’s call him the “anti-patriot,” stands Paine’s words on their head:

JUSTICE ALITO: 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?

In other words, let’s give the president the right to do whatever he pleases and hope he doesn’t rather than rely on the judicial system to treat him fairly under the law. Keep in mind that no president has been charged with a criminal offense in the 235 years since the Constitution was ratified. In every case where incumbents lost their reelection bids, they all left without incident. Until Donald Trump, who continues to falsely contend that he won the 2020 election.

That this comes from a member of the highest court in the land is shocking, until one considers that the source is the same justice who didn’t hesitate to take from American women the right to control their own bodies and enact instead his own Catholic dogma. Alito wrote the Dobbs opinion, overturning the precedent of Roe v. Wade that had stood for fifty years. Then he headed to Rome to take a victory lap.

The Usual Suspects

Joining Alito are the usual suspects. Justice Clarence Thomas, whose wife Gini actively crusaded to overturn the 2020 election and, in her role as lobbyist, was paid a hefty sum to do so, sat on the case in spite of his obvious conflict of interest.

The right-wing judges ignored the details of this case and looked instead to writing rules, something they usually argue should not be done. Justice Neil Gorsuch, who sits in the chair Senate Republican leader Mitch McConnell stole from Merrick Garland, said, “I’m not concerned about this case, but I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives.”

Justice Brett Kavanaugh, who likes beer, likes women, and had some major debts disappear in a manner that has never been explained, prompted Trump’s lawyer to add another requirement to holding a former president accountable. Not only must there first be impeachment and conviction in Congress, but the criminal statute in question must also clearly specify in so many words that it applies to the president. None  do, underscoring the absurdity of Kavanaugh’s proposition.

With four votes seemingly willing to give Trump a way out, Justice Amy Coney Barrett and Chief Justice John Roberts appear to be the swing votes.

The three liberal justices did what they could to demonstrate the drastic implications for the American Republic if the Trump position is upheld:

JUSTICE SOTOMAYOR: If the president decides that his rival is a corrupt person and he orders the military or orders someone to assassinate him, is that within his official acts for which he can get immunity?

D. JOHN SAUER, TRUMP LAWYER: It would depend on the hypothetical, but we can see that could well be an official act.

JUSTICE KAGAN: If a president sells nuclear secrets to a foreign adversary, is that immune?

D. JOHN SAUER, TRUMP LAWYER: …if it’s structured as an official act, he would have to be impeached and convicted first.

JUSTICE KAGAN: … he ordered the military to stage a coup, and you’re saying that’s an official act?

D. JOHN SAUER, TRUMP LAWYER: I think that would depend…

JUSTICE KAGAN: That’s immune?

D. JOHN SAUER, TRUMP LAWYER: I think it would depend on the circumstances, whether it was an official act.

Justice Barrett, appeared troubled by the sweep of Mr. Trump’s arguments. Returning to “Justice Kagan’s example of a president who orders a coup,” Justice Barrett repeated what she understood to be Mr. Sauer’s position, “You’re saying that he couldn’t be prosecuted for that, even after a conviction and impeachment proceeding, if there was not a statute that expressly referenced the president and made it criminal for the president?” Sauer confirmed.

They’ve Already Done the Deed

The simple fact that this hearing took place was a victory for Trump. The Court should have denied review and let the lower court decision stand. The conservatives not only showed their hand by granting this review, they demonstrated their bias by setting the hearing at the end of the argument schedule for the court term.

When some states denied Trump access to their ballots, citing provisions of the Constiutution baring office to insurrectionists, Trump asked for an expedited appeal. The court granted that appeal, and quickly ruled that the states could not deny him ballot access, in spite of the clear language in the Constitution that gives the state’s the right to make that decision.

In this case prosecutors asked that Trump’s appeal on the immunity issue be heard on an expedited basis. The Court denied that request and took its time to schedule a hearing. The court will issue its ruling sometime between now and early July. The slow speed with which the Court has handled this matter almost guarantees that the criminal federal cases pending against Trump will NOT be tried before the election. That delay deprives voters of a valuable piece of information, if a jury of his peers finds Trump guilty of a crime.

More Delay Likely

Based on the questioning during the oral argument, it appears a majority of the conservative justices will draw a distinction between “private” and “official” activities of the president to allow for a qualified immunity. Even though no constitutional provision, law, or precedent case does so. I expect the conservative majority will find the distinction to be a determining factor on the issue of immunity. The court is unlikely to define the distinction itself, instead returning the case to Judge Tanya Chutkan, of the Federal District Court in Washington, for further proceedings.

Judge Chutkan’s eventual determination on immunity, probably on a count-by-count basis, could then be appealed. This makes it unlikely Trump will come to trial until 2025. By then, Trump could once again be president and in a position to order all federal cases pending against him be dropped. Or to pardon himself, ending matters.

The Supreme Court has once again placed its vote in a presidential election. It has voted for authoritarianism over democracy. For the sake of democracy, voters must overrule it in November.

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