A republic imperiled
Elie Mystal captured the tenor of our times in a single Formerly Twitter post Monday afternoon:
On the first ruling, the U.S. Court of Appeals for the District of Columbia Circuit on Tuesday thankfully and logically ruled unanimously that former U.S. presidents, Donald “91 Counts” Trump specifically, are not immune from criminal prosecution.
“SAVE PRESIDENTIAL IMMUNITY!” the would-be potentate declared immediately on his social network. You first have to have it to save it, Donald.
Yes, Trump will appeal to “his” justices on the U.S. Supreme Court, and must by Monday, the Appeals Court ruled.
Dahlia Lithwick and Mark Joseph Stern write at Slate:
The justices must now decide whether to halt the new ruling—an act that seems likely to push Trump’s criminal trial past the 2024 election—or allow proceedings at the trial court to move forward at a pace that might affect the election’s outcome. In theory, this call is purely procedural; in reality, due to the compressed timeline here, it may well determine Trump’s fate. If the former president persuades the justices to freeze the case before Judge Tanya Chutkan for months, then wins the election, he will undoubtedly exploit his office to scrap the prosecution. Once again, SCOTUS holds his fate in its hands. It does so on the very same week it will hear a different case about his removal from the ballot.
Which references the second part of Mystal’s quip. But we’ll come back to that.
While it’s impossible to predict how the justices will handle what would otherwise be a straightforward case of Presidents Not Being Kings, there is reason to think a majority of the justices might kick the can down the road far enough to help Trump evade accountability before November. Such a move would be indefensible. The former president’s arguments are not just weak but trivial, and even this hard-right court should not debase itself by pretending to take them seriously. The question is not whether a majority will ultimately agree with Trump (it won’t) but whether a majority will abet Trump’s efforts to run out the clock (it might). The bench slap he received on Tuesday, however, makes that craven move harder to pull off with a straight face.
Indefensible? Yes. Gutless? Epically. A dereliction of duty to the citizens they serve (meaning in addition to Clarence Thomas’ billionaire benefactors). The drain around which their reputations swirl beckons. A “craven move harder to pull off with a straight face”? Perhaps. But then regular readers know that shamelessness is conservatives’ superpower.
Trump’s arguments before the D.C. court were facially farcical. But since that describes Trump’s morning makeup regime, unsurprising.
Lithwick and Stern continue:
The court’s reasoning boiled down to a simple proposition: “At bottom, former President Trump’s stance would collapse our system of separated powers by placing the President beyond the reach of all three Branches.” This position was, you may recall, taken by Trump’s attorney, John Sauer, who was asked at oral argument in this appeal whether presidential immunity would prevent the prosecution of a president who ordered SEAL Team Six to assassinate a political opponent. Sauer was unable to explain why it would not.
Trump’s attorneys will offer nothing better behind which the Supreme Court’s conservative majority can hide. At best, SCOTUS might refuse the case and let the lower court ruling stand. Second. it might grant a stay. But that would imply the Supremes believe his case has merit, and/or signal the court’s sense that a lower panel should not have the last word on a ruling of such import. It would also serve Trump’s desire to put off special prosecutor Jack Smith’s prosecution in hopes that, should Trump win the presidency in the fall, he could simply abort the case from the Oval Office. Third, SCOTUS could affirm, “issuing a one-line decision that simply says the D.C. Circuit got it right, without holding oral arguments.”
What’s the betting line in London?
As for Thursday’s follies, a court will entertain whether or not the 14th Amendment disqualifies Trump of Insurrection from ever again holding elected office. Trump’s attorneys offer more ludicrous arguments proving Trump is getting what he pays(?) for. Election Law Blog’s Richard Hasen has opinions, also at Slate:
Consider first Trump’s argument in the disqualification case that the Supreme Court will hear in oral argument on Thursday. That case concerns a Colorado Supreme Court decision keeping Trump off the ballot for the Republican presidential nomination on grounds that he engaged in insurrection in violation of Section 3 of the 14th Amendment. I’ve already noted here at Slate that Trump’s arguments in his Supreme Court opening brief against the Colorado decision spent an inordinate amount of time on a hypertechnical argument about whether the president is an “officer of the United States” and the presidency is an “office” of the United States for purposes of Section 3. The argument is exceptionally weak. As Marty Lederman writes, “If the presidency isn’t an office of the United States, of what sovereignty is it an office? Ohio? France?”
As Marty helpfully explains, there are really two related hypertechnical arguments here. First, because the presidency is not an “office” of the United States, the disqualification provision of Section 3 does not disqualify anyone who engaged in insurrection from serving as president. The second argument is that disqualification does not apply to a former president who has violated his oath, because the president is not an “officer of the United States” and Section 3 applies only to someone who has “previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States.” Trump has focused on this second argument.
Trumpish BS gets piled higher and deeper, of course. What the republic faces is Americans’ freedoms hanging beneath a Damoclean sword held in place by the thinnest of judicial threads. The Supreme Court has to know its already battered reputation is also on the line:
The Supreme Court now faces what are potentially two outcome-determinative questions on the presidential election, and it will likely make one or both decisions in a matter of weeks. If the court disqualifies Trump, that should be the end of his candidacy. If the court finds one way or the other not to disqualify Trump (and there are many ways the court can do so aside from embracing the hypertechnical argument), then the decision on timing on the immunity question becomes crucial.
If the court lets the election subversion case go to trial after holding there is no immunity, there’s a real chance Trump is convicted, and that conviction could be enough to swing the election away from Trump. Indeed, if it happens before the Republican National Convention, there’s a real chance the delegates could choose someone other than Trump for the general election.
Whatever the court does, it needs to be guided by the principle that like cases should be treated alike, and no person is above the law. The surest way for the court to lose more respect in the public’s eye is if it creates a rule that helps Donald Trump and only Donald Trump.
“People have got to know whether or not their president is a crook,” Richard Nixon famously said as he faced the Watergate investigation. What Trump insists is that they not know until after he’s been reelected and declares himself sovereign.
Mystal’s tweet suddenly doesn’t look very funny.
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