What Happened Yesterday at SCOTUS was an Abomination

I was deeply disturbed by the oral arguments yesterday before the United States Supreme Court regarding the former MAGA president’s claim that we have kings here in the U.S. The five men on the Court seemed ready, if not eager, to embrace some version of Trump’s argument that the constitutional “structure” should be presumed out of hand to be sufficient to constrain presidents from, say, ordering the military to stage a coup to retain power, but the “structure” of our justice system is somehow not enough to protect a former president from unjust, factually-insufficient, or politically-motivated prosecutions, and thus, a president must be absolutely immune from a criminal prosecution for such a democracy-destroying act undertaken while president. The inconsistencies and utter nonsense are self-evident. 

Consider this exchange between Justice Alito and Attorney Dreeben, the attorney representing the United States: 

Alito: “[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.  … [And] 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?”

Atty. Dreeben: “[I]t’s exactly the opposite, Justice Alito. There are lawful mechanisms to contest the results in an election. And … Petitioner and his allies filed dozens of electoral challenges and, in my understanding, has lost all but one that was not outcome determinative in any respect. There were judges that — that said, in order to sustain substantial claims of fraud that would overturn an election result that’s certified by a state, you need evidence, you need proof. And none of those things were manifested.”[1]

This ostrich-head-in-sand moment from Justice Alito begat this exchange, a beacon of common sense in comparison, from Justice Sotomayor and Attorney Dreeben: 

Justice Sotomayor: “A stable democratic society needs the good faith of its public officials. … And that good faith assumes that they will follow the law?” 

DOJ Attorney: “Correct.” 

Sotomayor: “Now, putting that aside, there is no fail-safe system of government, meaning we have a judicial system that has layers and layers and layers of protection for accused defendants in the hopes that the innocent will go free. We fail routinely, but we succeed more often than not. In the vast majority of cases, the innocent do go free. … Having said that, Justice Alito went through step by step all of the mechanisms that could potentially fail. In the end, if [our legal system] fails completely, it’s because we destroyed our democracy on our own, isn’t it?”

Attny. Dreeben: “It is.  [T]here are additional checks in the system. Of course, the constitutional Framers designed a separated powers system in order to limit abuses. [And] one of the ways in which abuses are limited is accountability under the criminal law for criminal violations. But the ultimate check is the goodwill and faith in democracy. And the crimes that are alleged in this case that are the antithesis of democracy, they subvert [it].”

Sotomayor:  “[And these immunity claims] somewhat put [that] into suspicion here, that no man is above the law either in his official or private acts.”

Attny. Dreeben: “[T]hat [no man is above the law] is an assumption of the Constitution.”[2] 

Alas, the five arch-conservative men on the Court appeared poised to agree with at least some of the former MAGA president’s claims of king-like immunity yesterday, trussing up their questions with legal technicalities, despite that for all of American history it has been understood that a former president can be held criminally liable for acts undertaken while president, evidenced by:

1. No explicit grant of immunity in the Constitution. So much for textualism, eh?

2. Tricky Dick got a pardon from President Ford. What was that for then, if presidents are absolutely immune?

3. The Department of Justice’s Office of Legal Counsel has concluded repeatedly that former presidents can be criminally prosecuted for criminal acts undertaken while president, within a detailed framework of oversight and legal standards that ensure sufficient seriousness of the crime and that constitutional safeguards are observed.  OLC has never opined that a former president is absolutely immune.  

4. All other executive branch officials that must make life and death decisions essential to our democracy do not enjoy this type of immunity.  Equal under the law, but not so much, hmmmm?

5. The President has unlimited access to the best legal advice in the world to keep his actions within the bounds of the law.

6. Mitch McConnell stated explicitly that he would not vote to convict the former MAGA president who is “morally and legally responsible for January 6” because “President Trump is still liable for everything he did while he was in office. … He didn’t get away with anything, yet. We have a criminal justice system in this country…and former presidents are not immune.”[3] So, the twice-impeached former MAGA president was acquitted for the second time after trying to stage a coup to illegally retain the presidency because the Senate was told by its leader to rely upon the justice system. But nevermind that now! That’s not aging so well, Mitch, is it?  

7. The intersection of the former MAGA president’s two main arguments results in tautological technospeak that defies common sense: (1) there must be a “clear statement” of presidential criminal liability in federal statute (J. Kavanaugh’s favorite argument yesterday); and (2) the Constitution requires impeachment plus conviction before criminal prosecution (the favorite of Alito, Roberts, Gorsuch, and Thomas). Of course, there were no clear statements of presidential criminal liability in federal statute back when the Constitution was written, which means that even with impeachment and conviction for a “high crime,” there could still be no criminal prosecution according to Trump. As Justice Barrett put it, “So how can you say that he would be subject to prosecution after impeachment while at the same time saying that he’s exempt from these criminal statutes [unless there is a clear statement]?”[4] So, I guess the framers were just writing symbolically about impeachment for “high crimes? Spare me! Again, so much for textualism! Of course, we do not need to look at statutes when considering whether the constitution grants immunity – they are separate bodies of law![5] And finally, the existence of a narrow category of unenumerated “high crimes” that trigger the unique and potentially singular remedy of impeachment to remove a sitting president leaves gobs of room for the prosecution of a former president for criminal acts while formerly in office.[6]

Of course, it was Justice Ketanji Brown Jackson that boiled it all down to the most important reality, as she so often does: 

“If the potential for criminal liability is taken off the table, wouldn’t there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they’re in office? … Presidents from the beginning of time have understood that [criminal prosecution] is a possibility. That … has kept [the Oval Office] from turning into the kind of crime center that I’m envisioning. But, once we say no criminal liability, Mr. President, you can do whatever you want, I’m worried that we would have a worse problem than the problem of the president feeling constrained to follow the law while he’s in office.”[7] 

Duh!   

Problematically, based on yesterday’s arguments, the ultimate decision will take far too long to be issued, will be quite fractured, further undermining the public’s confidence in the court, and in the final sum, will nearly certainly let some criminal charges proceed. 

But in doing so, the corrupt wing of SCOTUS will likely require a ridiculous fact-finding hearing at the district court level to determine private vs. official acts, which will then require even more delays to consider additional motions and arguments to determine if the indictment can stand if the official acts are “expunged” as Trump’s lawyer said must occur, which then would doom the entire indictment as a “one legged stool.”[8] 

And no matter what the trial court ruling is upon remand, it is nearly certainly not going to be to the satisfaction of Trump absent a complete dismissal. Accordingly, he will then appeal it as is the losing party’s right, resulting in more delays, which will then trigger a certiorari petition, which SCOTUS will then pat itself on its back for declining to take up, all the while further delaying the proceedings and denying the American people our right to hear the evidence before the election.

Justices Kavanaugh, Gorsuch, and Alito all repeatedly and blithely said they weren’t too interested in this case, but rather the future, as their ruling will be a “decision for the ages.”[9] Troublingly, this signals to me that the five billionaire-bought bros on the Court will find some sort of “official acts” immunity for the first time in our nation’s history. 

And by patting themselves on the back for their deep legal thinking that goes beyond this piddly little matter, these Justices sacrifice our freedoms as protected through our democratic processes in this election cycle – arguably the most important presidential election cycle in modern history.  These billionaire-bought justices are therefore violating their most solemn duties and oaths taken to protect the Constitution and this republic.  The only facts they should be focused on are the facts of this case.

Remember: the decision in Bush v. Gore was issued one day after oral arguments. Sad to say, in a 30-day over/under office pool on how long until the decision will be issued, I’ll take the over for my life’s savings. 

It doesn’t have to be this way.  In a world where our highest judges accept that there is no such thing as a king in America, SCOTUS would simply narrowly (and quickly) decide that there is no immunity in this case because (1) the MAGA president’s conduct went so far beyond core Article II powers (recall that the President of the United States under the Constitution has no role in the administration of elections, likely because presidents could run for unlimited terms when our country was founded, creating a bit of a conflict if a president could shot-call elections[10]), (2) the former MAGA president’s actions at issue here were indisputably intended to help himself as a candidate, and (3) he flouted the unequivocal legal advice he was provided at that time by his authorized government attorneys that there was no legitimate factual or legal basis to challenge the outcome of the 2020 election and he should stop lying to the American public.  

All of this matters. A lot. Because yesterday’s arguments and the eventual, long-delayed, plurality opinion from the Court will deprive Americans of a true right to choose their next leader, fully informed of all the facts, and further destabilize our democracy to devastating impact.

Revoltingly, despite these realities, the five arch conservatives on the Court repeatedly tried to convince us that even though they will anoint a king here in America by declaring for the first time in our history that presidents enjoy absolute criminal immunity of some type, they really do care about a “stable democracy.”  

Every American should demand that SCOTUS issue its decision as soon as possible, so that all of us have the benefit of some resolution. And if any of the charges withstand the billionaire-bought-and-paid-for Justices on SCOTUS, we all deserve the benefit of seeing the evidence tested at trial.  Justice can’t wait!  

Last but not least, yesterday (and not for the first time), the female Supreme Court Justices seemed to be the only ones that care one whit about real world impacts. The men on the Court engaged in tortured, theoretical, ivory tower academic nonsense, puffed up about their own fig leaf legal acumen. Such high falutin’ legalese is as dangerous as it is insulting to the American people. These men have lost touch and demonstrate zero humility or situational awareness. 

In the end, what they offered us was bloviating balderdash that blasts away our most sacred American value: that no man is above the law. Until now. 

All I can say is this: I hope I’m wrong.  

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FOOTNOTES: 

[1] Rough transcript, available April 25, 2024 at Supreme Court Transcripts at pp. 110-112.

[2] Id. at 112-114.

[3] NBC News, “Mitch McConnell says presidents shouldn’t be immune from prosecution,” April 25, 2024, available at:  NBC News Article 

[4] Id. at 55-56, 93-94.

[4] Id. at 168.

[5] As to the “clear statement doctrine,” shockingly, Trump’s lawyers forgot to assert it in their original immunity motion and appeal, only raising it for the first time within their immunity line of briefings at the Supreme Court. Id. at 64-66. This is a huge mistake that for any other litigant would spell waiver (i.e., rejection) of the argument. I’m absolutely certain that is exactly what Justice Kavanagh will conclude. Not!  

[6] Id. at 63-64.

[7] See id. at 98-99, 103, 135, 138, 140-42.

[8] Id. at 8, 31-34.

[9] Id. at 99.