Absolute Immunity: SCOTUS Weighing Whether or Not to Grant It For Trump

Trump: “My Supreme Court Has My Back, Bigly”

(Can't touch me me with a 10-foot pole)

Deeply legal troubling article with expert opinion from SALON and their exceptional coverage with this headline (formatted to fit the blog and in my view much easier to read and follow – hope you agree) — Trump demands absolute immunity:

“Legal experts: Shameful Supreme Court Puts U.S. One Vote Away from the End of Democracy”

Key Parts from Exceptional Legal Experts:

It’s not a hard question, or at least it hasn’t been before: Does the United States have a king – one empowered to do as they please without even the pretext of being governed by a law higher than their own word – or does it have a president? 

Since Donald Trump began claiming he enjoys absolute immunity from prosecution for his efforts to overturn the 2020 election, two courts have issued rulings striking down this purported right, recognizing that one can have a democracy or a dictatorship, but not both.

First expert view is the unanimous opinion of the U.S. Court of Appeals for the D.C. Circuit, issued this past February, upholding a lower court’s take on the very same question: “We cannot accept former President Trump’s claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power – the recognition and implementation of election results. Nor can we sanction his apparent contention that the Executive has carte blanche to violate the rights of individual citizens to vote and have their votes cast.”

You can’t well keep a republic if it’s effectively legal to overthrow it. 

But at oral arguments last week, conservative justices on the Supreme Court – which took up the case rather than co-sign the February ruling – appeared desperate to make the simple appear complex.

Justice Samuel Alito argued that accountability was what would actually lead to lawlessness by asking Michael Dreeben, the lawyer representing Special Counsel Jack Smith and the DOJ: “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?”

Dreeben reminded the court that no former president, before now, has ever faced criminal prosecution after leaving office. 

That’s because only one, Donald Trump, refused to accept the outcome of a democratic election and, when all legal avenues were exhausted, encouraged a mob to block the counting of the winner’s electoral votes.

Trump’s own legal counsel, D. John Sauer, then argued that the former president should even have enjoyed the right go further – to order the military to carry out a coup, or to kill his political rival, without fear that any American law could touch him emphasizing: “While there may be legitimate concerns of a hypothetical prosecution that is frivolous and partisan, that has not happened before and it is not happening now; the risk of an executive, unmoored, seems far greater.” [sic]

Not all of the court’s right-wing members went as far as Alito, making legal accountability the mother of tyranny. 

Justice Barrett (Trump appointee), challenged Sauer’s claim that a president could only be held accountable if they are successfully impeached and removed from office. 

When faced with the absurd – a legal rationale for political assassinations, couched in the language of the Constitution – none were willing to come out and ask: What are we even doing here?

Several renowned legal experts offer their views on this aspect:

Dahlia Lithwick and Mark Joseph Stern Writing at Slate said: “The court’s right-wing bloc acted like cynical partisans eager to spare one man, Donald Trump, from consequences for his actions. To at least five of the conservatives, the real threat to democracy wasn’t Trump’s attempt to overturn the election — but the DOJ efforts to prosecute him for the act. After so much speculation that these reasonable, rational jurists would surely dispose of this ridiculous case quickly and easily, [the oral arguments] delivered a morass of bad-faith hand-wringing on the right about the apparently unbearable possibility that a president might no longer be allowed to wield his powers of office in pursuit of illegal ends.”

Laurence Tribe, law professor at Harvard University, said the oral arguments were embarrassing, telling MSNBC: “Instead of a court hearing, it felt more like congressional showmanship. Even if it doesn’t end in a total victory for Trump, the hearing itself gave him most of what he wanted – a delay, with any ruling likely to prevent voters from hearing the case against him before they elect another president-king. It was a shameful performance by the court, buying the very time that Donald Trump wanted.”

It says a lot about the state of the conservative legal movement that so many Federalist Society alum, ostensibly committed to limited and constitutional government, would even consider the argument that one person, in America, should stand above all others.

J. Michael Luttig, a lifelong conservative and former federal judge told The New Republic’s Greg Sargent: “I’m profoundly disturbed about the apparent direction of the court. I now believe that it is unlikely Trump will ever be tried for the crimes he committed in attempting to overturn the 2020 election.” 

Note: Trump’s lawyer, and a former Judge Luttig’s law clerk, no longer recognizes conservatism as a philosophy of limited government. It is certainly no longer the movement for those who believe no one is above the law.

Judge Luttig concluded: “The conservative justices’ argument for immunity assumes that S/C Jack Smith’s prosecution of Trump is politically corrupt seeking a rule preventing  future presidents from corruptly prosecuting their predecessor. But such a rule would license all future presidents to commit crimes against the United States while in office with impunity. Which is exactly what Trump is arguing he’s entitled to do.”

Andrew Weissmann, a former federal prosecutor who worked on special counsel Robert Mueller’s Russia investigation, believes the very fact that the Supreme Court took up the case is alarming. He Appeared on MSNBC and said: “The very fact Trump’s arguments are being considered is a victory for the former president, likely delaying his election-interference trial until after November. But that the court is seriously considering his claim to immunity for all official acts taken as president signals that American democracy is in a terrible state. Trump’s claims could possibly be squared … with the text of the Constitution or the history of the presidency. Yet, there were justices who actually were taking this seriously. And it just was, frankly, shocking. At least four of the court’s conservative justices appear likely to side with Trump and it could hinge on Chief Justice John Roberts, putting the country one vote away from sort of the end of democracy as we know it, with checks and balances. The U.S. would not just have an imperial presidency, but a criminally immune king. What is so shocking is how close we are.”

My 2 Cents: The full unedited article text and format is here from SALON, and as I said, it is truly exceptional.

I also hope you agree with the expert consensus views stated above.

SCOTUS must do the right thing and NOT the political will that Trump wants them to do for him. That would be totally insane to rule in his favor on this case.

I also believe Justices Alito and Thomas should retire and the sooner the better for the sake of the nation.

Thomas, I also believe, should have recused himself from the very beginning of this case based on his wife’s ties and support of Trump regarding the January 6 Capitol Insurrection.

Thanks for stopping by.