“I feel like I’m taking crazy pills!”
During MSNBC’s evening coverage of Thursday morning’s arguments before the U.S. Supreme Court in the Trump v. United States case of presidential immunity, Ari Melber summed up his feelings (and mine) with a quote from Zoolander (2001): “I feel like I’m taking crazy pills!”
On Wednesday, the court considered how many organs a pregnant woman, septic and hemorrhaging, must risk losing before a doctor in Idaho could save her life and provide an abortion without risking jail. On Thursday, the Roberts court spun head-of-a-pin hypotheticals about whether a president can assassinate rivals or stage a coup with no consequences if it were alleged to be part of his/her official duties. We are that far down the MAGA rabbit hole.
Chris Hayes noted that in real time during oral arguments:
Everyone, including the justices who agreed to hear this farcical presidential immunity case, knew Team Trump’s arguments were a joke. At least, that’s what we assumed. Team Trump was not expecting to win. Putting off the start of special prosecutor Jack Smith’s Jan. 6 case against Donald Trump until after the November election was the point. But the court’s conservative wing played along, aiding and abetting Trump’s delaying tactic. Justices Thomas and Alito are looking to retire soon. They have no intention of allowing a Democrat in the White House over the next four years to pick their replacements.
What’s more, with Team Trump hammering the point that if Trump is not judged immune from prosecution upon leaving office, they promise subsequent presidents (Biden and other Democrats) will not be either. It’s not a theoretical point. It is an explicit threat Trump himself has already made.
Indeed, Justice Alito raised that as a point in favor of granting presidential immunity: “Now, if a — 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?”
Crazy Pills
That the Jan. 6 sacking of the U.S. Capitol inspired by a president has already destabilized our democracy seems not to have registered with Alito. Rather than enforcing the rule of law to guard against a recurrence, Alito’s answer seems to be to allow presidents to crime with abandon. Dahlia Lithwick and Mark Joseph Stern characterized Alito’s position on immunity at Slate as, “Don’t make me hit you again.”
Thus Melber’s, “I feel like I’m taking crazy pills!”
The D.C. Circuit’s February detailed, “cross-ideological decision should have been summarily affirmed by SCOTUS within days,” write the pair. Before yesterday, the pair figured that “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.” Thursday’s arguments “shattered those illusions.”
When Micheal R. Dreeben, Counselor to the Special Counsel, tried to focus on “the charges in this case,” Justice Alito jumped in to divert the discussion to abstract principles.
When the court’s liberal justices tried to return focus to the facts of the Trump case in interrogating the defense, the conservatives intervened to pivot to matters not at hand, such as whether the president has the power to pardon himself, or else to debate [Gorsuch, transcript pg. 18] how to segregate a president’s private actions (prosecutable) from “official conduct that may or may not enjoy some immunity.” Never to consider what Trump actually did. For her part, Justice Barrett ran through a list of Trump actions that his attorney agreed were indeed private and prosecutable. Game, set, match?
Not so fast. Chief Justice Roberts then suggested the case might be less complex if potentially official acts were expunged from the indictment. That is, if the case were remanded back to the lower court for further refining.
“[D]rawing that line would require months of hearings and appeals, pushing any trial into 2025 or beyond,” write Lithwick and Stern. “The president who tried to steal the most recent election is running in the next one, which is happening in mere months.”
The court’s right wing is running interference for Trumpism and signaled it openly. If they weren’t they would have let the lower court’s ruling stand, they conclude:
Five justices sent the message, loud and clear, that they are far more worried about Trump’s prosecution at the hands of the 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 that nothing he did was all that serious and that 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 matters.
It was not a good day for the rule of law. We’ll have to wait until nearly July to find out how not-good.
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