OMG they think @SatireAP was being serious. https://t.co/TPYlh774C9
— Bradley P. Moss (@BradMossEsq) August 20, 2024
I wouldn't place a large bet on the Supreme Court upholding the express will of the largest majority of voters, not the Roberts Court, not in 2024 or 2025 nor on many of the lower courts, especially in states controlled by white supremacy. I heard a lot of lawyers say that it was impossible that the Supreme Court was going to side with the extreme "presidential immunity" that was so mistakenly judged as being finally argued by the three judge panel that rejected Trump's lawyers arguments that he could kill someone with impunity. Especially if it looks like Democrats might have a majority in Congress as well as the presidency since one of their most urgent jobs will be court reform. Roberts and his gang of six will do anything they can, legitimate or illegitimate to prevent that and under the deeply flawed Constitution, they have the power to say what is legitimate because there is no check on them. I hope you're right but I wouldn't bet on it.
I can't assiduously defend the Supreme Court anymore, especially after I was one of those convinced they'd never be so foolish as to give Trump or the Presidency any criminal immunity at all.
But having digested Trump v. US, I don't think it's the "Get out of jail free" card Trump thinks it is. Maybe Roberts intended that, but I think he had to water it down to get the votes he needed for a majority. Oh, I'm sure Alito and Thomas would have been happy for Roberts to declare the POTUS a monarch, but he lost Barrett on part of the opinion, and I think he wrote it as weakly as he did to keep Gorsuch and Kavanaugh on-side. I'm not Nina Totenberg (who is, anymore?) but I have my suspicions, based solely on the published opinion.
Roberts wanted desperately to give POTUS blanket immunity, but he couldn't do that (as I say, he would have kept Alito and Thomas, but 3-6 doesn't carry the day). So he cobbled together a Goldbergian mechanism that relies on exclusion of evidence at trial, and then gave the lower courts almost no guidance (feature, not bug. Again, he lost Barrett on part of this anyway. Had he been more specific, it might well have been 5-4, or even 4-5). Legal experts are already quite sure the ruling doesn't affect the New York fraud case (what little evidence came in about Trump in situ in the White House is irrelevant to the verdict). The other problem is procedural: Trump is barred from raising any challenges to the evidence on any grounds, including a newly-invented immunity doctrine, by procedural rules. Now, Roberts could have written an opinion that didn't make Presidential criminal immunity rest so much on admission of evidence at trial (Nixon v Fitzgeral has no such landmines. It's actually quite straightforward in its application, as opposed to Trump v US), but would he have kept his majority in doing so? I don't think so.
Does the opinion apply in the DC case? That's, after all, where this opinion comes from. But the Court sent it back to the trial court for consideration of...what the Court didn't say, mostly. Yes, that leaves the door open to further appeals, but I'm not sure those appeals can be interlocutory (before trial). That may be a close question, but it will cost Trump a lot of money to find out. Basically, Trump's immunity rests on a bar to certain evidence of criminality. But if criminality can be proven absent that evidence (which is why emptywheel keeps expecting Smith to file a superseding indictment and carve out anything resting on evidence Roberts & Co. might think is barred by their invented immunity), then the immunity itself is...worthless. Oh, maybe it's worth a few arguments at the appellate level, but I'm not sure the Roberts court's heart is in this ruling. That's going a bit out on a limb, but they didn't write an immunity rule a la Nixon v. Fitzgerald (sitting Presidents immune from civil cases arising from their actions as President. That ruling didn't apply to Clinton's problems following him from Arkansas.).
And it doesn't apply at all to the MAL case, because Trump was no longer POTUS by the time those acts occurred.
So, the pertinent point: will the Supreme Court save Trump's electoral bacon? Well, they didn't in 2020. Yes, there's the specter of Bush v Gore, but the Florida courts were dilly-dallying, and the Supremes looked at the Electoral Count Act and said: everybody out of the pool, deadline's looming. I think the Florida courts don't shoulder enough blame for that debacle. Were they going to let Florida's votes linger until 2001? Yeah, for a lot of reasons (not least the 12th Amendment), that was never gonna happen.
Trump's efforts are all grassroots (local election officials), but they are the weakest links in the chain. First, absent evidence of actual fraud, even the Supreme Court declined involvement in 2020. Second, the duties of these officials is ministerial, not legislative or judicial. They follow the law: they don't rewrite it or even interpret it. The "crisis" in the vote count this November will be swept away like so many dead leaves, and the votes cast won't go with them. The courts have ample power, as they did in 2020, to order the vote counts authorized no matter the outcome of those counts, and there won't even be a 12th Amendment H of R vote to elect the POTUS.
The Supremes basically declared POTUS immune from criminal prosecution for his actions as president. Which is a fair concept, except when the POTUS is bribed (as, IIRC, Barrett pointed out. Is bribery an "official act"? Well, we'll see, won't we?), or otherwise goes completely rogue. As I say, I don't think the opinion bears much scrutiny, or is sound constitutional law. And I think the best response to it is a Constitutional Amendment a la the 19th, telling the Supremes to pound sand. Does Trump v US signal the Supremes want to ensconce Trump despite the vote? Alito and Thomas might do it. But I don't think they can get three more to go along with them.
No comments:
Post a Comment