“There is no failsafe system of government, meaning, we have a judicial system that has layers and layers of protection for the accused 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. But we still fail. We’ve executed innocent people. Having said that, Alito went through a step by step of all the mechanisms that could potentially fail. In the end, if it fails completely, it’s because we’ve destroyed our democracy on our own.
The argument today was depressing. It seems clear that the cult of Unitary Executive is very intrigued by the idea of granting full immunity to a president. That cult is a majority of the court.
He seriously said that.
This was a terrifying Supreme Court argument. It’s clear that the majority actually favors Trump’s argument that a president must have immunity. Whether they are willing to go that far remains to be seen but it’s almost certain now that the J6 trial will likely not likely see the light of day before the election.
We are in big trouble, people. Big. Trouble.
Update:
Judge Michael Luttig wrote:
As with the three-hour argument in Trump v. Anderson, a disconcertingly precious little of the two-hour argument today was even devoted to the specific and only question presented for decision.
The Court and the parties discussed everything but the specific question presented.
That question is simply whether a former President of the United States may be prosecuted for attempting to remain in power notwithstanding the election of his successor by the American People.
thereby also depriving his lawfully elected successor of the powers of the presidency to which that successor became entitled upon his rightful election by the American People — and preventing the peaceful transfer of power for the first time in American history.
It is not even arguably a core power or function of the President of the United States to ensure the fairness, accuracy, and integrity of a presidential election.
Let alone is it a core power or function of the President of the United States to ensure the proper certification of the next president by the Congress of the United States. Neither of these is a power or function of the president at all.
In fact, the Framers of the Constitution well understood the enormous potential for self-interested conflict were the President to have a role in these fundamental constitutional functions.
Consequently, they purposely and pointedly withheld from the President any role in these fundamental constitutional functions.
To whatever extent the Framers implicitly provided in the Executive any role whatsoever in these fundamental constitutional functions, it was a limited role for the Executive Branch,
through the Department of Justice, to inquire into allegations of fraud in presidential elections and ensure that the election was free, fair, and accurate.
The former president’s Department of Justice did just that and found that there was no fraud sufficient to draw into question the results of the 2020 presidential election.
The former president of course has refused to this day to accept that finding by not only his own Department of Justice, but also countless others of his closest advisors.
Whether undertaken in his or her “official,” “candidate,” or “personal” capacity, a President of the United States has never been and can never be immune from prosecution (after leaving office),
for having attempted to remain in power notwithstanding the election of that President’s successor by the American People.
Consequently, there is no reason whatsoever for the Supreme Court to remand to the lower courts for a determination of which of the alleged criminal acts might have been personal and which might have been official.
Neither is a clear statement from Congress that a president is subject to prosecution under the statutes with which the former president has been charged necessary in this particular case.
As applied to the former president for the criminal conduct with which he has been charged, there can be no question but that Congress intended a President of the United States to come within the ambit of the statutory offenses with which he has been charged.
For the same reason, it would be ludicrous to contend that the former president was not on sufficient notice that if he committed the criminal acts charged, he would be subject to criminal prosecution by the United States of America.
To hold otherwise would make a mockery out of the “plain statement” rule.
I wouldn’t hold my breath.