Supreme Court watchers mollified themselves (and others) with vague promises 

Dahlia Lithwick and Joseph Stern

as taken from Slate

Good read as one can see how the SCOTUS 5 or 6 are twisting the logic of Constitution first and portraying the president into something more reasonable. Military swears first to the Constitution. This is a very strange read for myself. Others may not find it so strange and such is open to discussion.


Mollified themselves with vague promises of when the rubber hit the road, even the ultraconservative Federalist Society justices of the Roberts court would put democracy before party whenever they were finally confronted with the legal effort to hold Donald Trump accountable for Jan. 6. There were promising signs:

They had, after all, refused to wade into the Trumpian efforts to set aside the election results in 2020. They had, after all, hewed to a kind of sanity in batting away Trumpist claims about presidential records (with the lone exception of Clarence Thomas, too long marinated in the Ginni-scented Kool-Aid to be capable of surprising us, but he was just one vote). We promised ourselves there would be cool heads and grand bargains. Even though the court might sometimes help Trump in small ways, it would privilege the country in the end. We kept thinking at least, the Justices Brett Kavanaugh and Neil Gorsuch and Chief Justice John Roberts, the voice of reasoned never-Trumpers might still penetrate the Fox News fog. We told ourselves, at least six justices, and maybe even seven, of the most MAGA-friendly court in history would still want to ensure that this November’s elections would not be the last in history. Political hacks they may be, but they were not lawless ones.

On Thursday, during oral arguments in Trump v. United States, the Republican-appointed justices shattered those illusions. This was the case we had been waiting for, and all was made clear—brutally so. These justices donned the attitude of cynical partisans, repeatedly lending legitimacy to the former president’s outrageous claims of immunity from criminal prosecution. To at least five of the conservatives, the real threat to democracy wasn’t Trump’s attempt to overturn the election—but the Justice Department’s efforts to prosecute him for the act.

These justices fear, it is Trump’s prosecution for election subversion that will “destabilize” democracy, requiring them to read a brand-new principle of presidential immunity into a Constitution guaranteeing nothing of the sort. They evinced virtually no concern for our ability to continue holding free and fair elections culminating in a peaceful transfer of power. They instead offered endless solicitude for the former president who fought the transfer of power.

AB: Rapidly looking up the word solicitude, hmmm. “care or concern for someone or something.” Is this what the conservative side of the court is offering up? The court is worried about a president who attempted to overthrow the government? Why?

However the court disposes of Trump v. U.S., the result will almost certainly be precisely what the former president craves: more delays, more hearings, more appeals—more of everything but justice. This was not a legitimate claim from the start, but a wild attempt by Trump’s attorneys to use his former role as chief executive of the United States to shield himself from the consequences of trying to turn the presidency into a dictatorship. After so much speculation that these reasonable, rational jurists would surely dispose of this ridiculous case quickly and easily, Thursday delivered a morass of bad-faith hand-wringing on the right about the apparently unbearable possibility a president might no longer be allowed to wield his powers of office in pursuit of illegal ends.

Just as bad, we heard a constant minimization of Jan. 6, for the second week in a row, as if the insurrection were ancient history, and history and has since been dramatically overblown, presumably for Democrats’ partisan aims.

We got an early taste of this minimization in Trump v. Anderson, the Colorado case about removing Trump from the ballot. The court didn’t have the stomach to discuss the violence at the Capitol in its sharply divided decision, which found for Trump. Indeed, the majority barely mentioned the events of Jan. 6 at all when rejecting Colorado’s effort to bar from the ballot an insurrectionist who tried to steal our democracy. But we let that one be, because we figured special counsel Jack Smith would ride to the rescue. Smith has indicted Trump on election subversion charges related to Jan. 6, and the biggest obstacle standing between the special counsel and a trial has been the former president’s outlandish claim. A claim he has absolute immunity from criminal charges as a result of his having been president at the time. Specifically, Trump alleges his crusade to overturn the election constituted “official acts” that are immune from criminal liability under a heretofore unknown constitutional principle the chief executive is quite literally is above the law.

The U.S. Court of Appeals for the District of Columbia Circuit held in February the president does not have blanket or absolute immunity for all actions taken in office. This includes “official” acts performed under the guise of executing the law (for example, Trump’s attempt to weaponize the DOJ against election results under the pretense of investigating fraud). The D.C. Circuit’s emphatic, cross-ideological decision  should have been summarily affirmed by SCOTUS within days. Instead, the justices set it for arguments two months down the road—a bad omen, to put it mildly. Even then, many court watchers held out hope the Thursday morning’s oral arguments were to be the moment for the nine justices of the Supreme Court to finally indicate their readiness to take on Trump, Trumpism, illiberalism, and slouching fascism.

It was not to be. Justice Samuel Alito best captured the spirit of arguments when he asked gravely “what is required for the functioning of a stable democratic society” (good start!), then answered his own question: total immunity for criminal presidents (oh, dear). Indeed, anything but immunity would, he suggested, encourage presidents to commit more crimes to stay in office:

“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?”

Never mind the president in question did not leave office peacefully and is not sitting quietly in retirement but is instead running for presidential office once again. No, if we want criminal presidents to leave office when they lose, we have to let them commit crimes scot-free. If ever a better articulation of the legal principle “Don’t make me hit you again” has been proffered at an oral argument, it’s hard to imagine it.

Justice Sonia Sotomayor spoke to this absurdity when she responded in what could only be heard as a cri de coeur:

“Stable democratic society needs good faith of public officials,” she said. “That good faith assumes that they will follow the law.” The justice noted that despite all the protections in place, a democracy can sometimes “potentially fail.” She concluded: “In the end, if it fails completely, it’s because we destroyed our democracy on our own, isn’t it?”

But it was probably too late to make this plea, because by that point we had heard both Alito and Gorsuch opine that presidents must be protected at all costs from the whims of overzealous deep state prosecutors brandishing “vague” criminal statutes. We heard Kavanaugh opine mindlessly on the independent counsel statute and how mean it is to presidents, reading extensively from Justice Antonin Scalia’s dissent in a case arguing that independent counsels are unconstitutional. (Yes, Kavanaugh worked for Ken Starr, the independent counsel.) If you’re clocking a trend here, it’s gender. Just as was the case in Anderson, it’s the women justices doing the second-shift work here: both probing the thorny constitutional and criminal questions and signaling a refusal to tank democracy over abstractions and deflections. As was the case in the EMTALA arguments, it’s the women who understand what it looks like to cheat death.

Is the president, Sotomayor asked, immune from prosecution if he orders the military to assassinate a political rival? Yes, said John Sauer, who represented Trump—though it “depends on the circumstances.”  Could the president, Justice Elena Kagan asked, order the military to stage a coup? Yes, Sauer said again, depending on the circumstances. To which Kagan tartly replied that Sauer’s insistence on specifying the “circumstances” boiled down to “Under my test, it’s an official act, but that sure sounds bad, doesn’t it?” (Cue polite laughter in the chamber.)

This shameless, maximalist approach should have drawn anger from the conservative justices—indignation, at least, that Sauer took them for such easy marks. But it turns out he calibrated his terrible arguments just right. The cynicism on display was truly breathtaking: Alito winkingly implied to Michael Dreeben, representing Smith, we all know that Justice Department lawyers are political hacks, right? Roberts mocked Dreeben for saying:

“There’s no reason to worry because the prosecutor will act in good faith.”

The conservative justices are so in love with their own voices and so convinced of their own rectitude that they monologued about how improper it was for Dreeben to keep talking about the facts of this case, as opposed to the “abstract” principles at play.

“I’m talking about the future!”

Kavanaugh declared at one point to Dreeben, pitching himself not as Trump’s human shield but as a principled defender of the treasured constitutional right of all presidents to do crime. (We’re sure whatever rule he cooks up will apply equally to Democratic presidents, right?) Kavanaugh eventually landed on the proposition that prosecutors may charge presidents only under criminal statutes that explicitly state they can be applied to the president. Which, as Sotomayor pointed out, would mean no charges everywhere, because just a tiny handful of statutes are stamped with the label “CAN BE APPLIED TO PRESIDENT.”

The words bold and fearless action were repeated on a loop today, as a kind of mantra of how effective presidents must be free to act quickly and decisively to save democracy from the many unanticipated threats it faces. And yet the court—which has been asked to take bold and fearless action to deter the  person who called Georgia’s secretary of state to demand he alter the vote count, and threatened to fire DOJ officials who would not help steal an election—is backing away from its own duty. The prospect of a criminal trial for a criminal president shocked and appalled five men: Thomas, Alito, Kavanaugh, and Gorsuch suggested Smith’s entire prosecution is unconstitutional. Meanwhile, Roberts sounded eager at times to handle the case just a hair more gracefully by cutting out its heart by preventing the jury from hearing about “official acts” (which lie at the center of the alleged conspiracy). Justice Amy Coney Barrett was far more measured, teasing out a compromise with Dreeben that would compel the trial court to tell the jury it could not impose criminal liability for these “official” acts, only “private ones.” Remember, drawing that line would require months of hearings and appeals, pushing any trial into 2025 or beyond. The president who tried to steal the most recent election is running in the next one, which is happening in mere months.

The liberal justices tried their best to make the case of justice required denying Trump’s sweeping immunity claim, permitting the trial to move forward, and sorting out lingering constitutional issues afterward, as virtually all other criminal defendants must do. They got little traction. Everyone on the bench was well aware the entire nation was listening to arguments. The whole nation wants to understand whether Trump’s refusal to concede the 2020 election was an existential threat to democracy or a lark. Five justices sent the message, loud and clear, they are far more worried about Trump’s prosecution at the hands of a “supposed” deep-state DOJ than about his alleged crimes, which were barely mentioned. This trial will almost certainly face yet more delays. These delays might mean that its subject could win back the presidency in the meantime and render the trial moot. But the court has now signaled, nothing he did was serious and the danger he may pose is not worth reining in. The real threats they see are the ones Trump himself shouts from the rooftops: witch hunts and partisan Biden prosecutors. These men have picked their team. The rest hardly matter.