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So many thanks to the dozen anonymous everyday people in New York who courageously did what the nation's highest court likely will not.
Last Thursday, 12 ordinary citizens unanimously convicted Donald Trump of 34 felonies. As many have commented, in doing so they upheld the rule of law—the fundamental principle that no person is above the law and that even a former president may be convicted for violating it.
Later this month, however, the six right-wing Justices on the U.S. Supreme Court may issue a decision in U.S. v Trump that would significantly undermine the rule of law, finding that presidents are either wholly or partially immune from federal prosecution (although it would not overturn the New York State conviction.)
SCOTUS has already slow walked its decision for so long that even if it decides that Trump is not immune from prosecution for inciting the January 6 insurrection, it will probably be too late to try him before the November 2024 election.
In late 2023, trial court Judge Tanya Chutkin denied Trump’s motion to dismiss the charges on Trump’s claim that he’s immune from prosecution. She set a trial date for March 4, 2024. Last December, Special Prosecutor Jack Smith asked SCOTUS to review that decision without waiting for a D.C. Circuit Appeal Court ruling but SCOTUS refused. On February 6, the D.C. Circuit unanimously rejected Trump’s claim and ruled that the trial could move forward unless SCOTUS intervened.
SCOTUS did intervene on February 28, postponing the trial indefinitely and agreeing to decide whether and, if so, to what extent a former president enjoys presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office. SCOTUS set oral arguments for nearly two months later on April 24, the very last day of the term to hear oral arguments, virtually ensuring that there would be no decision until late June or early July, effectively giving Trump the delay that he most wanted.
The right-wing Justices hardly asked questions about text or original meaning. Instead, they behaved like they were delegates to a Constitutional convention debating whether or not a President should have some degree of immunity...
The right-wing SCOTUS majority claims to decide cases based on “originalism” or “textualism,” the theory that cases should be decided based on the text of the Constitution as generally understood at the time it was written. But in oral arguments, the right-wing Justices had little to say about text or original meaning. There is no text in the Constitution that mentions or implies presidential immunity from criminal conduct and there’s nothing in the debate about drafting the Constitution that implies that the founders intended to grant king-like immunity to the president. Quite the opposite. The entire purpose and structure of the Constitution is to protect against anyone having power like England's King George III.
So the right-wing Justices hardly asked questions about text or original meaning. Instead, they behaved like they were delegates to a Constitutional convention debating whether or not a President should have some degree of immunity—whether for official or unofficial acts—as a matter of pure policy as if they were writing a new Constitution from scratch.
Justice Samuel Alito (he of the two pro-coup flags over his house) argued “[I]f 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?” And where does it say this in the text or original meaning of the Constitution?
Gorsuch claimed that “I’m not concerned about this case so much as future ones.” Kavanaugh agreed stating “…like Justice Gorsuch, I’m not focused on the here and now of this case. I’m very concerned about the future.” This is in complete violation of the text of Article III of the Constitution which limits the power of Federal Courts to reviewing actual “cases and controversies” and bars them from issuing advisory opinions which merely advise on the constitutionality or interpretation of a law.
Apparently the right-wing “Justices” only believe in textualism and originalism when these theories can arguably support their policy views. They’re prepared to toss them out when they don’t back up their political views such as Trump should be immune from prosecution for breaking criminal laws by inciting an insurrection.
It’s possible that SCOTUS will forge a “compromise” opinion that Presidents cannot be prosecuted for “official” acts (like ordering Seal Team 6 to assassinate a political opponent) but only for “unofficial” acts and send the case back to the lower court to determine whether Trump’s insurrectionary acts were “official” or “unofficial.” This will accomplish Trump’s goal of delaying a trial until after the election, if ever.
So many thanks to the 12 anonymous jurors in New York who courageously upheld the rule of law. But be ready for the U.S. Supreme Court to undermine the rule of law and effectively declare that the president of the United States is a king.
A breach of this magnitude—in a case that implicates the health of our democratic institutions, by a justice that hasn’t shown a single shred of contrition—is a fit topic for robust political intervention.
In January 2021, the upside down American flag had become a banner for former U.S. President Donald Trump’s effort to block the peaceful transfer of power. Armed insurrectionists carried it into the U.S. Capitol on January 6. Eleven days later, even as National Guard troops still guarded the Capitol and the Supreme Court building itself, Justice Samuel Alito flew the insurrectionists’ flag outside his Virginia home.
This was far more than an act of indiscreet partisanship, troubling though that might have been. We’ve had those before, from Sandra Day O’Connor backing George W. Bush to Ruth Bader Ginsburg mocking Trump. Justices are human, and sometimes they slip up.
No, this was not a gaffe. It was a senior government official hoisting the banner of a violent insurrectionist movement devoted to overturning a core constitutional principle. At the time, there were numerous cases before the court in which the justices swatted away Trump’s false claims of a stolen election.
In response to the latest scandal, Alito has shrugged. That is a powerful demonstration of the dangerously emboldening effects of lifetime power.
And now this term alone, three major cases have been argued that go straight to the misconduct that marked the “Stop the Steal” effort. Already Alito joined the majority in rejecting Colorado’s effort to keep Trump off the ballot because he had engaged in an insurrection. The court is considering a challenge to the use of federal criminal law that could toss the convictions of 350 insurrectionists who stormed the Capitol.
And of course, Alito is part of the Supreme Court’s most egregious intervention on Trump’s behalf—its refusal to allow the timely federal prosecution of the former president. Special Counsel Jack Smith asked for a ruling confirming that Trump is not immune from prosecution in December 2023. Instead, Alito and his colleagues scheduled arguments for the last hour of the term and seemed to make up a doctrine of wide immunity for some criminal misconduct on the spot. Stop the steal? Start the stall.
Alito has long been inscrutably angry, unwaveringly dogmatic, and the most predictably partisan of all justices. But his growing brazenness still shocks. Judges are required to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” There is simply no question that Alito has breached the rules. Of course he should recuse himself from consideration of the Trump immunity case and the other cases dealing with January 6. Of course he won’t.
So in the face of this kind of brazenness, what to do?
To start, Congress must finally pass a binding code of conduct for the justices. The current code, which the court announced in November, is vague and toothless. It was always a bid to forestall congressional action.
Last year, Alito told The Wall Street Journal, “I know this is a controversial view, but I’m willing to say it. No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period.” That’s silly. As my colleagues Jennifer Ahearn and Michael Milov-Cordoba recently documented in a well-timed law review article, Congress has a major role to play in enforcing Supreme Court ethics. Congress can, and repeatedly has, expanded and shrunk the size of the court. It can change the court’s jurisdiction. It has set rules for recusal and financial disclosure. Congress even wrote the justices’ first mandatory oath of office way back in 1789. As Justice Elena Kagan wisely responded last year, “It just can’t be that the court is the only institution that somehow is not subject to checks and balances from anybody else. We’re not imperial.”
Congress can also demand that Alito answer questions under oath, rather than hiding behind incomplete press releases (and his wife). Maybe it can do more.
A breach of this magnitude—in a case that implicates the health of our democratic institutions, by a justice that hasn’t shown a single shred of contrition—is a fit topic for robust political intervention.
And, as we’ve said before, it’s time for term limits. In response to the latest scandal, Alito has shrugged. That is a powerful demonstration of the dangerously emboldening effects of lifetime power. Nobody should hold too much power for too long.
And where is Chief Justice John Roberts? He often purports to be an institutionalist and tries to curate the credibility of the court. He knows that public approval for the high court has plunged to nearly its lowest level ever recorded in polls. That goes beyond a reaction to Dobbs and other activist rulings—it reflects wide public dismay with what has become a partisan institution.
Ultimately, this kind of power grab should be a part of the national debate in our national election. Where is President Joe Biden? He seems reluctant to engage, clinging to an outdated reverence many liberals still have for the court as an institution. But as conservatives taught us for decades, it is entirely appropriate for the Supreme Court, its actions, and its impact, to be a major part of public debate.
The U.S. Flag Code instructs that the upside down flag should not be flown “except as a signal of dire distress in instance of extreme danger to life or property.” Today it is our constitutional system that is in extreme danger—but not in the way Alito and his allies believe. If Alito won’t voluntarily do the bare minimum to protect our democracy, the coequal branches should do everything they can to force him to do so.
The former president and presumptive 2024 GOP nominee is on trial in New York for allegedly falsifying records related to hush money payments to cover up sex scandals.
The New York judge presiding over former U.S. President Donald Trump's trial for allegedly falsifying business records on Tuesday held the presumptive 2024 GOP nominee in criminal contempt for repeatedly violating a gag order, fined him $9,000, and threatened to jail him if he does it again.
Judge Juan Merchan ordered Trump to pay $1,000 for each violation of the gag order and directed him to remove eight offending social media posts.
"Defendant violated the order by making social media posts about known witnesses pertaining to their participation in this criminal proceeding and by making public statements about jurors in this criminal proceeding," Merchan wrote in his 8-page decision.
Trump is "hereby warned that the court will not tolerate continued willfull violations of its lawful orders and that if necessary and appropriate under the circumstances, it will impose an incarceratory punishment," the judge added.
Trump faces 34 felony charges for falsifying records related to alleged hush money payments to cover up sex scandals during the 2016 election cycle.
Overall, Trump is charged with 88 federal and state felonies related to this case and three others that stem from interfering with and trying to overturn the 2020 presidential election, and mishandling classified documents.