Justice delayed
An ethically compromised Court throws Trump a legal lifeline
Yesterday the Supreme Court decided to hear Trump’s claim that he and other former presidents are immune from criminal prosecution, all but guaranteeing Trump will not stand trial for his attempt to overturn the 2020 election interference before November.
Trump claims on appeal that he is entitled to presidential immunity for plotting to overturn the 2020 election, and the high court has validated Trump’s legal strategy of repeated delay to push back any trial date until after it loses electoral relevance. The hearing, now set for late April, may result in an opinion issued late Summer; that opinion could again return the case to the appeals court on a limited question of the Court’s choosing. Even assuming Trump’s claim of immunity eventually fails- which is widely expected- the decision won’t be issued in time for the election interference case to go to trial before the next election.
Given that SCOTUS decided Bush v. Gore in a matter of days, deciding the 2000 presidential election in Bush’s favor, the Court’s delay on Trump’s behalf appears intentional. When the delay is coupled with the complete lack of legal support for the premise that presidents are above the law- which is antithetical to our national history- the decision appears nakedly partisan.
SCOTUS’ Code of Conduct has no teeth
The deliberate delay on Trump’s behalf comes to us from a compromised Court. Clarence Thomas apparently did not recuse himself from the decision despite his wife’s deep involvement with Trump’s attempted election fraud; his continued involvement reflects the Court’s toothless Code of Conduct, released last November.
The justices adopted the voluntary code after Justices Alito and Thomas came under fire for accepting lavish trips from litigants before the Court.
Alito accepted an exclusive, expense-paid, private-charter-plane Alaskan retreat with Paul Singer, a billionaire fossil fuel investor, major GOP donor, and hedge-fund manager with multiple cases pending before the court. The exclusive fishing junket was arranged by Leonard Leo, a Federalist Society activist who fights climate science and works to put conservative jurists with similar views on the federal bench. Shortly thereafter, Alito joined a 5-4 majority to change 100 years of election law, striking the Election Act's limit on corporate campaign expenditures in Citizen United, which gave special interests and corporate lobbyists outsized influence over national elections.
For Thomas’ part, gifts lavished on him and his crusading wife Ginni were also next level: island hopping on staffed superyachts; pampered vacations worth millions over two decades; bougie boarding school tuition; a refurbished home for mom; disguised provocateur ‘fees’ for Ginni; and travel on private aircraft meant for heads of state. The Thomases have luxuriated in conservative donor Harlan Crow’s extreme wealth for decades, while most federal judges won’t even accept a free lunch. Clarence and Ginni show us how it’s done: not just the lunch, but also the chef, the estate he toils in, and a private jet and yacht to get to the secluded island it sits on.
Faced with these well-publicized ethical breaches, the Court adopted a Code of Conduct, widely panned. One of the most glaring deficits is its lack of enforcement. Another is the lack of recusal, a matter raised consistently after Alito and Thomas ruled in favor of their benefactors and self-interests, and after Thomas flat out refused to recuse himself from cases involving Trump’s efforts to stay in power, like Trump’s immunity claim, a cause in which his wife, Virginia, was deeply involved.
While the Federal law on recusal mandates recusal in conflicts like these, SCOTUS’ code merely suggests the justices “should” disqualify themselves, advice Thomas seems to have rejected.
Using immunity to re-litigate the 2020 election
Trump’s continuing insistence that presidents before him also broke the law, but with legal impunity, attempts to relitigate the 2020 election three years later, after more than 60 courts already rejected his claims. This is not beating a dead horse, it’s trying to breathe life into long decayed and necrotic tissue.
Trump argued on appeal that there are “vigorous disputes and questions about the actual outcome of the 2020 Presidential election—disputes that date back to November 2020, continue to this day in our nation’s political discourse, and are based on extensive information about widespread fraud and irregularities in the 2020 election,” citing, outrageously, an anonymous “report” Trump posted on his own Truth Social account as supporting authority.
It's obvious to anyone outside the Fox bubble that the only reason the 2020 election is still “in our nation’s political discourse,” is because Trump keeps repeating his same Big Lie, ad nauseum, to anyone who will listen. Trump obviously knows that repeating a falsehood often enough, with enough media attention, will make it true, for at least some cohort of uneducated voters.
Team Trump continues to lie about American history
Trump continues to insist that the lack of prior, similar cases proves that presidents are immune from criminal prosecution when they break the law. He argues that, “The 234-year unbroken tradition of not prosecuting Presidents for official acts, despite vociferous calls to do so from across the political spectrum, provides powerful evidence” that presidents are immune from prosecution. As examples, he cites Reagan’s involvement in Iran-Contra, Clinton’s pardon of Marc Rich, Bush’s claims of “weapons of mass destruction,” and Nixon’s firing of Archibald Cox, none of which led to criminal prosecution.
None of these acts were crimes, while all of them were undertaken pursuant to clear powers of the presidency. In contrast, Trump attempted to change the outcome of a federal election to keep himself in power, which is not a recognized presidential function. The Constitution gives states responsibility for elections, and reserves a role for Congress, not the president. Trump claims it was his duty to investigate a “fraudulent election,” but by Constitutional design, presidents have no role in conducting, investigating or overseeing federal elections.
SCOTUS’s decision appears partisan
Despite the Supreme Court’s decision to throw Trump a legal lifeline, few legal experts agree with his theory. Most prosecutors, judges, and amici briefs filed on appeal to date find Trump’s criminal immunity claims both preposterous and dangerous.
George Washington, in his farewell address, counseled his new and vulnerable nation that, “The very idea of the right and power of the people to establish government presupposes the duty of every individual to obey the established government.”
Washington warned that a future usurper like Trump would try to obstruct official proceedings, warning future Americans to be on the lookout for “obstructions to the execution of the laws, including group arrangements to counteract the regular deliberation and action of the constituted authorities…”
Too bad the nakedly partisan Supreme Court isn’t on the lookout. In America, it appears that one man is, indeed, above the law.
I feel like this is the ballgame and I'm sick about it. Keep up the great work, Sabrina!
Writing as a Canadian, it is sad that Thomas does not realize that his legacy will be that he was the most outrageous grifter in the history of the US Supreme Court. Further, his willingness, and that of his colleagues, to ignore and reverse precedent (and even advocate for same!) will lead to a more liberal Court (by which I mean a less classist and corrupt Court) overturning most of the controversial decisions of this Court. The effect of that approach will be to successfully find a vein in the already already prepped for execution (by this Court) concept known as precedent.
So much for hundreds of years of common law. AND so much for the rule of law that posits as a key element of its legitimacy that prior decisions will be respected and, at least in theory, not subject to the purely personal preferences of presiding jurists (or the preferences of a fishing camp buddy).
The need for an impartial arbiter to resolve disputes is FUNDAMENTAL to a sustainable democracy. And, at some point, growing inequities in the US (I should add "united" in name only) , protected, promoted (and invented) by this Court, will fertilize the nothing-left-to-lose sentiment we have seen growing throughout the nation. "Just burn it down" will become an entirely reasonable option for both the right and the left.
John Roberts' legacy will be that he helped strap the Court to the gurney.
It looks, from the outside, where this kind of corrupt judicial re-activism is absolutely inconceivable, that the US is moving towards the end of democracy, without the help of its fascists, thanks to the corruption of one of its most important institutions.
Sabrina - you might want to think about an alternative career (or I could help get you called to bar here).