Lost In The Stars

John Roberts' Sordid Legacy: 14 Pages of Mean Tweetshttps://t.co/ws521bL9hR

— emptywheel (sing the blues) (@emptywheel) October 3, 2024

What’s being lost in the discussion of the DOJ brief is that the presentation of the evidence is an argument about the admissibility of the evidence. This is why I’m not too impressed with the comments of Laurence Tribe or Jim Trusty. This evidence is not being submitted now as proof of the allegations; it’s being submitted for admissibility at trial.

The Supreme Court opinion on Presidential immunity turns entirely on that issue: what evidence can be presented in a criminal prosecution of a former president?

I should explain that evidence in court is not evidence in public discourse. When a reporter asks an interview subject what “evidence” they have to support a claim, the response can be as facile as “some people say.” Donald Trump has recently asserted that even the federal government doesn’t know how many people live in America. It’s an obviously stupid statement, resting on mindless distrust of government provided information. But if you needed to rebut him in court on this claim, you’d need to satisfy the rules of evidence to bring in government census data. You couldn’t just pull up the Census Bureau website on your phone, wave it around, and say “Everybody knows!”

I’m not going to bore you with the details of the rules of evidence for proving up government documents. The point is, until you can meet those requirements, your evidence is not admissible in court, and so is not “evidence.”

So the former Trump defense lawyers telling cable news that Smith’s brief is not proof, are right. But it’s not meant to be. The question is: can this evidence be admitted in court against Trump as proof he committed crimes while in office? That’s the sole purpose of the brief, because if the evidence is inadmissible, the prosecution is impossible.

Which is how we get here:

John Roberts not only rewrote the Constitution to protect Donald Trump. He forced prosecutors to spend 14 pages arguing that it is not among the job duties of the President of the United States to attack Republicans who’ve crossed him on Twitter. This is what the Chief Justice wants to protect. 

This is the all-powerful President John Roberts wants to have. Someone who can sit in his dining room siccing mobs on fellow Republicans. 

Who knows whether it will work? Who knows whether these right wing Justices will go that far — to argue that even the President’s mean Tweets targeting members of his own party must be protected from any accountability? 

But prosecutors personalized it. 

As noted above, the 14 pages analyzing mean Tweets follows the analysis of two rally speeches, in which prosecutors first show the January 4 Georgia speech was a campaign event, and then (among other things) lay out the similarity between that speech and Trump’s January 6 one. 

Among the things Trump included in both speeches was an attack on the Supreme Court: 

The defendant, who in his capacity as a candidate had suffered personal legal defeats in his private, election-related litigation at the Supreme Court, attacked it (Dalton at GA 1095; “I’m not happy with the Supreme Court. They are not stepping up to the plate. They’re not stepping up.” Ellipse at GA 1125: “I’m not happy with the Supreme Court. They love to rule against me.”). 

Of course, the Justices can’t view that as an official act. It would be anathema to the very principles of separation of powers the Justices claim to be guarding. Plus (as noted here and elsewhere), Trump had specifically labeled his intervention in Ken Paxton’s lawsuit as done in his official capacity. But building off how obviously unofficial this attack on John Roberts and his buddies is, it makes it all the more obvious that Donald Trump’s mean Tweets aren’t official acts either. 

Though the inclusion of Trump’s attacks on them also might get these partisan hacks to think more seriously about the nearly identical exhortations Trump made on Truth Social before they decided to rewrite the Constitution in his favor.

This is supposed to be a government of laws, not of persons, so we shouldn’t even be here at all. And while  the Supreme Court is supposed to concern itself with questions of law, and particulars of fact only as they determine those questions (“change the facts, change the outcome “), ew is right. Some of this DOJ brief is aimed squarely at the six justices of Trump v U.S., because those justices put themselves in the crosshairs. Supreme Court opinions should be about principles of law. But Trump v US is about admissibility of evidence in a particular case. They made it particular and individual when they remanded it to the trial court with the instructions: “You sort out this mess we’ve made, and we’ll decide whether you got it right or not, on these particular facts and these particular parties.” The Court didn’t declare a general principle; it declared that it would review the evidence against Trump and decide if he could be prosecuted. It declared that the POTUS stands alone of all persons in the U.S., and only the SCOTUS can determine his criminal culpability, or lack thereof. And they can do it by determining what proof is allowed, against that President, on a case by case basis.

The decision invents not only rewrites the Constitution in Trump’s favor, but in favor of sux justices on the current Court. They give themselves extra-constitutional powers to determine a President, alone among all individuals in the United States, can be prosecuted. And they do this not under a principle of immunity as established in Nixon v Fitzgerald, but under a new rule that they must review the evidence in any Presidential prosecution before trial, in order to determine if a trial will be allowed.

That’s why the prosecutor have made it personal. The six justices have set themselves up as the President’s firewall. Not the Presidential firewall, but the President’s firewall. They are not protecting the office, they are protecting the person. Because the office doesn’t commit crimes; the person does. And determining whether the evidence shows “official” (and immune) acts, or unofficial (not immune) acts, is ultimately a decision about the person; what did he do, and why did he do it? And why Donald Trump tweeted, and why Joe Biden didn’t, shouldn’t determine the admissibility of evidence, nor the validity of a prosecution. Whether or not evidence is admissible should be a question for the rules of evidence and 4th and 5th amendment jurisprudence; not for who holds the office, why they did what they did. The latter question is a question of fact, and that’s solely the province of a jury.

It’s certainly not a question to be answered by six unelected justices on the Supreme Court.