Kangaroo court
If Donald Trump “could stand in the middle of Fifth Avenue and shoot somebody,” the conservative majority of the Supreme Court of the United States would find a way to call that an “official act” and say he can avoid responsibility for his actions.
That nightmarish scenario appears to be a frightening possibility as Trump-appointed justices seemingly bent over backwards to ignore the real-life equivalent of that shooting — the January 6th insurrection — in hearing oral arguments on Trump’s claim that presidents must have absolute immunity from prosecution as long as they live at 1600 Pennsylvania Avenue.
As with their questions before ruling Trump could remain on the ballot in Colorado, the conservative justices seemed to prefer hypothetical questions such as whether a president could order the assassination of a political rival, sell nuclear secrets to another country or order the military coup.
Not so Justice Sonia Sotomayor, who got to the heart of the issue with E. John Sauer, the attorney presenting Trump’s immunity claims. He raised the “official act” standard:
“Sotomayor: …[L]et's say, this president who ordered the military to stage a coup. He's no longer president. He wasn't impeached. He couldn't be impeached. But he ordered the military to stage a coup. And you're saying that's an official act?
Sauer: I think it would depend on—
Sotomayor: That's immune.
Sauer: I think it would depend on the circumstances, whether it was an official act. If it were an official act, again, he would have to be impeached.”
And convicted.
As Hamlet said “ay, there’s the rub.”
Republicans cited the role of the court system in refusing to impeach and convict Trump for his role in spearheading a series of events — including fake elector schemes in Georgia, Arizona, Nevada, and Michigan — and encouraging a mob to head to the Capitol because “if you don't fight like hell, you're not going to have a country anymore."
That “fight” ended with five deaths and the evacuation of the vice president presiding over the electoral vote count amid hallway chants of “Hang Mike Pence,” undoubtedly at a hastily built gallows on the Capitol grounds
Only seven Republicans voted to convict.
Senate Minority Leader Mitch McConnell even rejected Trump’s immunity argument as he voted against conviction:
“President Trump is still liable for everything he did while he was in office. ... He didn't get away with anything, yet,” McConnell said in 2021, adding, “we have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being [held] accountable by either one.”
Upon further review…
While state and lower federal courts have been responsive to the real events that took place up to and on the day of an attempted coup, we see the reality of Trump’s attacks on federal judges and his belief the three he appointed to the Supreme Court would protect him.
He should have also counted on the support of those appointed by Bush 41 and 43.
Ironically his last appointee, Justice Amy Coney Barrett, suggested a narrow window for the January 6 case to proceed before the November election, getting Trump’s attorney to concede several of the charges brought by Special Counsel Jack Smith would not be official acts.
It’s worth noting too that while Attorney General Merrick Garland has been blamed in liberal quarters for taking his time in building a solid case to bring against Trump — both over January 6th and the mishandling of classified documents after leaving office — the proverbial judiciary fix was in.
Look no further than U.S. District Judge Aileen Cannon, who has not viewed the speedy trial protections of the 6th Amendment as a concern in handling what is likely an open-and-shut case where classified documents were stored in a Mar-a-Lago bathroom and Trump repeatedly refused requests and then subpoenas to return them.
It’s important to recognize Trump has never rejected charges that he did what he has been accused of doing. Rather he insists he had an absolute right to do so.
Court watchers expect the Supreme Court will not accept that claim. Instead, they will likely kick the case back to District Court Judge Tonya Chutkan to determine what charges involve “official” acts and what are “private” acts.
Adding the Supreme Court to the list of enablers, starring with congressional Republicans, who have twisted themselves into constitutional knots to fall in line with Trump’s efforts to delay a day in court in the hope he will win in November and sweep those cases — and our right to know if our president is a criminal — into the dustbin of history.