Alexandria Ocasio-Cortez (Getty)
Many Americans probably are trying to wrap their heads around this morning's stunning U.S. Supreme Court (SCOTUS) ruling, granting Donald Trump immunity for his official acts while president. What happened today? This is from a report at CNN:
The Supreme Court handed down a landmark decision Monday granting Donald Trump partial immunity from special counsel Jack Smith’s election subversion case, handing the former president a significant win during his reelection bid.
Though the 6-3 ruling technically allows Smith to inch the prosecution toward resolution, the majority opinion from Chief Justice John Roberts left many technical questions unresolved – making it increasingly unlikely that a trial can get under way before the November election.
“The president is not above the law,” Roberts wrote for the conservative majority. “But Congress may not criminalize the president’s conduct in carrying out the responsibilities of the executive branch under the Constitution.”
For starters, the Supreme Court ruled that for “core” presidential activity, Trump has the absolute immunity he had sought. The majority said that Trump’s conversations with the Justice Department – his efforts to try to get officials on board with his effort to overturn the election – were covered with absolute immunity.
For other official actions and more routine powers held by the president, the court said there is at least some immunity and it largely deferred to lower courts to sort that out. That’s a process that could take weeks or even months.
The analysis about what’s immune and what isn’t “ultimately is best left to the lower courts to perform,” Roberts wrote.
Perhaps even more important, the majority made clear that official acts cannot be considered at all as evidence in a potential trial, which could make it much harder for Smith to prevail.
Here are five quick takeaways from the ruling.
(1) As we have reported previously, there is no support for presidential immunity in U.S. law. In fact, there is nothing in our law to support SCOTUS' decision to even hear the Trump case.
(2) That means the nation's highest court acted unlawfully to reach today's ruling.
(3) That raises the specter of possible criminal activity within the ranks at SCOTUS, especially among the six conservative justices who joined in the 6-3 majority. That suggests it is time to treat the justices like common criminals, because a growing body of evidence indicates that shoe fits. Does that mean they could eventually be led out of their plush surroundings in handcuffs? I see reason to believe that could happen, assuming someone in authority has the guts to pursue such a case.
(4) While MAGAs celebrate the ruling as a victory for Trump, they might have forgotten their guy is not president at the moment. That title belongs to Joe Biden, and he could be able to use his new-found immunity in interesting ways -- some of which might not be too pleasant for Trump or members of the U.S. Supreme Court. At least one prominent attorney already is thinking along those lines. Tristan Snell -- founder of MainStreet Law in New York City, commentator at CNN and MSNBC, and author of Taking Down Trump -- writes today at Twitter:
Biden's next act with his new presidential immunity:
Create 4 new seats on the Supreme Court, by executive order.
He can add a biding ethics code as well.
And a special counsel to investigate corruption on SCOTUS while he's at it.
(5) U.S. Rep. Alexandria Ocasio-Cortez also is thinking about repercussions. She is plnning to prepare articles of impeachment regarding corruption on SCOTUS, as reflected in today's ruling. From a report at The New Republic (TNR):
In response to the Supreme Court’s disastrous 6–3 decision on Monday granting Trump expansive immunity from criminal prosecution, Representative Alexandria Ocasio-Cortez issued a stern condemnation of the court’s “corruption crisis beyond its control” and vowed to issue articles of impeachment against the Supreme Court once Congress reconvenes after Labor Day.
“Today’s ruling represents an assault on American democracy,” Ocasio-Cortez wrote in response to the Supreme Court deciding on Monday that presidents are above the law. “It is up to Congress to defend our nation from this authoritarian capture.” Ocasio-Cortez’s bold declaration prompted a since-deleted response from Representative Veronica Escobar saying, “Count me in,” suggesting there may soon be more lawmakers behind the effort.
Prior to Monday’s ruling in Trump v. United States, the Supreme Court significantly expanded its judicial power and overturned the Chevron doctrine—and then further obliterated modern administrative law in yet another case. The Supreme Court also dismantled a law used to convict hundreds of Capitol rioters on the basis that the relevant subsection of the law comes after an irrelevant subsection, a barely cogent legal argument that conservative justice Amy Coney Barrett described as “textual backflips.”
According to the Constitution, Supreme Court justices “shall hold their Offices during good Behaviour,” meaning justices remain on the Supreme Court until they either step down, die, or are removed by impeachment. Impeaching a Supreme Court justice requires a simple majority vote in the House followed by a conviction in the Senate with a two-thirds majority vote—meaning the success of AOC’s prospective efforts to impeach any Supreme Court justice relies in part on Democrats winning control of the House and substantially increasing their majority in the Senate, as well as ginning up enough support to pursue impeachment in the first place.
The only Supreme Court justice ever to be impeached was Samuel Chase in 1804. The House successfully passed articles of impeachment against Chase on charges that he used his position to promote his political agenda, which at the time the House’s impeachment articles described as “tending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partizan.” Despite the House’s successful impeachment vote, the Senate later acquitted Chase.
It’s unclear whether the articles of impeachment Ocasio-Cortez intends to file would be levied against all six conservative justices behind the majority opinion in the immunity ruling, or whether the effort would focus on specific justices, such as Clarence Thomas and his chronic failure to disclose gifts from conservative billionaires or Samuel Alito and his wife’s love of far-right flags. Regardless, it’s a massive threat that will take a Herculean effort to pull off.
How wildly off target is today's ruling on Trump's immunity claim? Retired Alabama attorney Donald Watkins, who is widely recognized as an expert on criminal-defense and civil-rights law, has provided insight in our post of 2/29/24:
The issue before the court in Trump's immunity case could not be more simple. Perhaps no one has put it more succinctly than longtime Alabama attorney Donald Watkins, who has tried some of the nation's best-known cases in criminal-defense and civil-rights law. He also has become a leading voice in online investigative journalism.
From a Legal Schnauzer post dated Feb. 6, 2024, under the headline "Criminal-defense expert: Trump's attempt to have appeals court grant him immunity was doomed from the outset, which former president should have known":
Donald V. Watkins, longtime Alabama attorney and one of the nation's foremost authorities on criminal defense (see here and here), says Donald Trump's attempt to have a court declare that absolute immunity shielded him from prosecution for alleged criminal acts committed while he served his first term as president (2017-2021) was an exercise in futility. That's because no provision of law allowed the D.C. Circuit Court to grant the relief Trump was seeking. In short, Trump's complaint was little more than a glorified "snipe hunt," which he is expected to continue by filing an appeal with the U.S. Supreme Court. -- even though there is little chance the result will change.
Under the headline "D.C. Appeals Court: There is No Presidential Immunity for Criminal Acts," Watkins writes:
Today, a federal court of appeals in Washington confirmed for the public what most competent lawyers knew all along – there is no such thing in U.S. law as presidential immunity for criminal acts.
None of the 46 U.S. presidents has ever enjoyed such immunity.
Presidential immunity for criminal acts is not authorized in the U.S. Constitution. It is not authorized in any federal statute. It is not authorized in the Code of Federal Regulations.
Such an immunity claim is merely a figment of Donald Trump’s imagination. This was a “bullshit” legal argument when it was first asserted by Trump’s lawyers.
We are NOT running a monarchy in America. There is no King, Queen, or Emperor, who is above in law.
This is how Richard Painter, former chief White House ethics counsel for the George W. Bush administration, puts it: "There is a substantial chance Trump is being blackmailed by Putin." Was Richard Painter shocked that SCOTUS would even hear Trump's immunity claim? Sure sounds like it.
