By Jessie Seigel / April 29, 2024
Besieged by a multitude of federal and state criminal indictments—and now, by his first criminal trial, one in state court—defendant Donald J. Trump is trying every which way to squirm out of his dates with accountability.
His most prominent current gambit is the argument, advanced by his lawyers, that he must have absolute immunity for anything he did while president, and in particular, for so-called official acts. Absent total immunity, his lawyers argue that impeachment and conviction by the Senate is a prerequisite for any later criminal prosecution. The goal is to end the criminal cases against him—or at least delay them until Trump can obtain the presidency again and end them himself.
Trump’s lawyers made this argument concerning the four-count indictment in Washington, DC stemming from his attempt to overthrow the 2020 election results.
A District Court rejected that claim of absolute immunity, stating: “[The] defendant’s four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.”
The D.C. Circuit Court of Appeals also sensibly rejected this immunity argument.
Trump and his lawyers then appealed to the U.S. Supreme Court. And--unlike the legal stance of the district and circuit courts--it looks like the Supreme Court’s right-wing majority has jumped head first into Trump’s pocket.
First, instead of simply adopting the lower courts' determinations and refusing to take on the appeal, the Court stayed Trump’s federal criminal proceeding to do its own review of the immunity issue. The Court can move very quickly when it wishes (Think Bush v. Gore, handing the 2000 election to George W. Bush). But in this instance, it scheduled oral arguments for the very last day of its term—April 25 (last Thursday).
The stay likely has prevented the underlying case from going forward, let alone concluding until after the 2024 election. The justices know full well—how could they not?—that the delay will help Trump’s presidential run and that if he manages to take back the White House, Trump will suborn the Department of Justice to get the federal cases against him dropped.
Even worse, at the oral argument last Thursday, the statements and questions of the ultra-conservative justices indicated that they could decide presidents do have unfettered immunity for any action they take, no matter how criminal.
The majority openly refused to address presidential immunity in the context of the current case. That is, whether the kinds of actions Trump actually committed have immunity. Instead, they pretended to address some higher philosophical question concerning the breadth of presidential powers generally, and whether some future hypothetical president would feel free to do his job without immunity.
The Immunity Question
The liberal minority on the court focused on one of the most important legal pillars of democracy (that no one is above the law), and the dictatorial threat presidential immunity would pose—including acts Trump has already committed.
In answer to pointed questions from Justices Elena Kagan and Sonia Sotomayor, Trump’s attorney, D. John Sauer, maintained that the president ordering the military to assassinate a rival he views as corrupt could be an official act for which he would have immunity.
Sauer argued that selling nuclear secrets to a foreign adversary could be “structured” as an “official act,” thus requiring impeachment and conviction by the Senate before a criminal charge could be brought.
He even maintained that whether or not the ordering of a military coup would be an official act that confers immunity “would depend on the circumstances.”
In addition, Sauer asserted that acts done for private gain could also qualify as official acts--making them eligible for immunity even if it were found that private acts are not.
In a democracy, there can be no circumstances in which assassinating one’s rivals, selling secrets, or staging a coup can be considered legitimate official acts. As Justice Kagan said, the framers deliberately did not put an immunity clause into the Constitution. “…They were reacting to a monarch who claimed to be above the law.” She added, rhetorically, “Wasn’t the whole point that the president was not a monarch and the president was not supposed to be above the law?”
Justice Kagan’s statement is so basic that, in a normal situation, it should not even need stating.
Nevertheless, conservative Justice Neil Gorsuch pompously claimed that the Court is “writing a rule for the ages.” And despite the fact that Trump has attempted, committed, or threatened to commit the actions Sauer claimed should be immune, Justice Gorsuch declared, “I’m not concerned about this case.”
Studiously avoiding the actual issues presented in the case before him, Gorsuch added, “I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives.”
Justice Brett Kavanaugh chimed in: “Like Justice Gorsuch, I’m not focused on the here and now of this case. I’m very concerned about the future.”
Justice Samuel Alito said, “I want to talk about this in the abstract because what is before us, of course, does involve this particular case, which is immensely important, but whatever we decide is going to apply to all future Presidents.”
Chief Justice John G. Roberts Jr. had the gall to criticize the appellate court’s rejection of immunity for Trump, claiming it “did not get into a focused consideration of what acts we are talking about or what documents we are talking about.”
Perhaps Roberts should address that criticism to the members of his crew--Gorsuch,
Kavanaugh and Alito. (Of the conservative justices, only Justice Amy Coney Barrett deviated somewhat, acknowledging a lapse in Sauer’s logic by asking how a president can be both absolutely immune but also prosecutable after impeachment.)
Aping the argument of Trump’s attorney, these justices professed concern only for whether future presidents might be inhibited from making needed decisions for fear of prosecution—or might try to keep power in order to prevent prosecution once they were out of office.
As The Atlantic has put it: “Trump has the conservative justices arguing that you cannot prosecute a former president for trying to overthrow the country, because then they might try to overthrow the country, something Trump already attempted and is demanding immunity for doing.”
The perverted logic of this Court’s sophist hacks would make Louis Carroll proud.
Some commentators have referred to the Court majority’s approach in this instance as “stumbling” towards the establishment of an authoritarian state. But they are not stumbling. They’re not ignorant or sheltered—not philosophers in an ivory tower detached from the practical world who do not realize where they are leading the nation. Rather, based on their statements and questions, they are moving knowingly and in lock-step toward an authoritarian goal.
In the Jurists’ Trial of the post-World War II Nuremberg Proceedings, prominent judges of the Third Reich were charged with crimes committed in the name of the law. Lead counsel for the prosecution Telford Taylor said that those jurists—who were charged with judicial murder—had done so “by destroying law and justice in Germany, and then utilizing the emptied forms of legal process for persecution, enslavement and extermination on a large scale.”
By its actions, the Supreme Court’s right-wing majority appears to be following down the same path: using perverted logic to twist law and justice into the shape they want, and using the remaining empty forms of legal process to further their reactionary goals.