Saturday, May 18, 2024

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Disturbing Trump Presidential Immunity Theory Gets Surprising Supreme Court Traction

Trump lawyer pushes alarming theory that would allow presidents to orchestrate coups and assassinate rivals with impunity.

US Supreme Court
US Supreme Court, photo: Thomas Hawk

The Supreme Court’s conservative majority appeared open on Thursday to approve a legal theory that could effectively place current and future presidents above the law. The case before them, arising from former President Donald Trump’s efforts to overturn the 2020 election and his alleged orchestration of the attempted Jan. 6 insurrection, has taken on existential importance for American democracy.

The Supreme Court signaled that any trial for former President Donald Trump over his efforts to subvert the 2020 election result is unlikely to occur soon, which practically amounts to immunity as the trial would be pushed past the election. Multiple justices voiced worrying reservations about whether certain presidential actions should be legally shielded from prosecution, even in cases of alleged criminality.

While the court seems poised to reject Trump’s extreme claim of complete immunity, it may opt to punt the case back to lower courts for further review. Such an action would make it highly unlikely a trial concludes before voters go to the polls this November, handing Trump’s campaign a major win.

At its core, Trump’s legal team is advancing the radical argument that presidents should be immune from prosecution for any acts they deem to fall within their official duties while in office—no matter how corrupt or criminal those acts might be. It’s a fundamentally anti-American notion completely at odds with the founding vision of leaders like Thomas Jefferson, who firmly believed no one should be above the law.

Alito and Kavanaugh Make Arguments for Presidential Immunity

Yet instead of reflexively rejecting such an unsound and dangerous proposition, several conservative Supreme Court justices seemed disturbingly receptive. Justice Samuel Alito, in particular, expressed concerns that allowing prosecutions of former presidents could create a destabilizing “cycle” where incumbents fearing legal accountability would be incentivized to unlawfully cling to power.

The breathtaking projection and flawed logic behind that fretting is hard to overstate. After all, it was Trump himself who plunged the nation into a constitutional crisis by refusing to accept his clear electoral defeat and spawning the horrific January 6th insurrection which resulted in the deaths of multiple capitol police officers. To then suggest that prosecuting such egregious misconduct could somehow make future presidents more likely to subvert democracy is an insane leap of logic.

Justice Brett Kavanaugh added his own contorted arguments for insulating former presidents, invoking Richard Nixon’s post-Watergate pardon by Gerald Ford as supposedly bolstering the case for immunity. Kavanaugh argued that while Ford’s pardon was criticized at the time, it is “now looked upon as one of the better decisions in presidential history, I think, by most people.” Not only is that completely false, but also that pardon’s mere existence is itself clear evidence that former presidents can in fact face prosecution, directly undermining Trump’s claims.

Amy Coney Barrett Grills Sauer

To her credit, Supreme Court Justice Amy Coney Barrett, a Trump appointee, grilled the former president’s lawyer, John Sauer, on the flawed distinction he tried to make between private acts that could be prosecuted and “official acts” that he claimed were immune from prosecution. Barrett highlighted specific portions of the federal indictment detailing Trump’s efforts to prevent Congress from certifying Biden’s 2020 election victory. Sauer conceded those examples involving outside private actors amounted to prosecutable private conduct.

However, Sauer’s stance on what egregious acts a president could theoretically get away with as “official” duties raised alarming red flags. When Justice Elena Kagan posed a hypothetical scenario of a president ordering a military coup, Sauer’s response suggested such an anti-democratic abuse of power could potentially fall under immune “official acts” depending on the circumstances. 

He even argued Congress would need to first impeach and convict before criminally charging a president for such acts—an assertion with no constitutional basis that would make coups unpunishable.

Trump’s Lawyer: Assassinating a Political Rival Could Constitute Official Presidential Act

Perhaps most chillingly, Trump’s own lawyer John Sauer argued that even a president ordering the military to stage a coup or assassinate a political rival could potentially constitute immune “official acts.” Imagining such a hypothetical was unnecessary; the charges Trump already faces involve very real allegations that he corruptly tried to steal the 2020 election and unleashed political violence against Congress, which essentially amounts to an attempted coup.

Yet as outlandish as such scenarios sound, they ultimately stem from the same authoritarian underpinnings as Trump’s legal defense. If presidents can unilaterally define what acts fall under their purview and deem them off-limits from outside scrutiny, then the path is cleared for a president to consolidate autocratic powers and operate as a dictator.

This would represent a drastic deviation from the Framers’ vision of the presidency as being constrained by co-equal branches, checks and balances, and the rule of law. If the Supreme Court were to accept Trump’s arguments, it would make the president essentially a monarch.

Liberal Supreme Court Justices Reject Immunity Claim

While the Supreme Court’s liberal wing pushed back forcefully on Trump’s most extreme claims, the ideological balance tilted heavily against full accountability for his efforts to subvert the 2020 election outcome. Chief Justice John Roberts and others seemed keen on remanding the case back to lower courts for further proceedings that could significantly delay any trial until after the 2024 election cycle.

Given Trump’s still-active campaign to regain power by spreading lies about electoral fraud, that would suit his interests perfectly. Indeed, the very premise underlying Trump’s legal strategy—that politically-motivated prosecutions threaten democracy—can itself be seen as a self-fulfilling pretext for delaying justice indefinitely in the name of politics.

The rich irony is that Trump’s actual coup attempt against the 2020 results represented the true threat to democratic norms and the peaceful transfer of power. The Supreme Court shielding him from legal consequences for those actions would only encourage future authoritarians to double down on such antidemocratic efforts.

Yet based on their concerning lines of questioning, Justices Alito and Kavanaugh appear disturbingly unable to distinguish between theoretical risks and the real-world damage Trump inflicted through his lies and incitements to violence. They’ve lost sight of the Founders’ ideals and the nation’s founding principles.

As Justice Department lawyer Michael Dreeben argued, the Supreme Court must reject Trump’s claims as it is essential to reaffirm a foundational principle that no one is above the law in this country. Failure to do so would enshrine the doctrine that criminality can become permissible for presidents whenever they decree their motives involve official business.

Such legal precedent would deal a catastrophic blow to America’s democratic credentials, both at home and internationally. It would leave the nation at the mercy of any president audacious enough to trample ethical and legal guardrails in service of raw power.

Supreme Court Appears to be Willing to Set Dangerous Precedent

In an alarming display, the Supreme Court’s conservative justices appeared bent on crafting a dangerous precedent that would place future presidents above the law under the misguided rationale of preserving stability. But their willingness to shield even criminal misconduct in the name of executive power threatens to corrode democratic accountability itself—the very bedrock norm they purport to uphold. 

As the people of the United States anxiously awaits their ruling, the Supreme Court’s decision risks either reaffirming the nation’s founding principles of checks and balances or charting a perilous backslide towards a de facto elected monarchy untethered from constitutional constraints. The stakes for the future of our republic could not be higher.