Kuttner on TAP: A Captive and Corrupted Court

Any hope that Chief Justice John Roberts would be a breakwater against a wholly partisan Supreme Court or an incipient despotism ended today with the 6-3 decision in the well-named case of Trump v. United States, giving a president near-total immunity from prosecution if an otherwise illegal activity can be deemed an official act of the chief executive. The cynicism of the Court’s decision was compounded by its tactic of slow-walking the final ruling, remanding the case to the trial court to delay it until well after the November election. Had it chosen to do so, the Court could have issued its own final decision today.

The most important and flagrant of the Trump indictments involved special counsel Jack Smith’s case against Trump for plotting to overturn the 2020 election in the events at the U.S. Capitol of January 6, 2021. Trump’s effort to strong-arm Vice President Pence into delaying or reversing the vote count was prima facie evidence of Trump’s intent, even if Trump’s relationship to the violent insurrection inside the Capitol was murkier.

In her District Court ruling in Washington last December, Judge Tanya S. Chutkan denied Trump’s immunity claims, writing: “Whatever immunities a sitting president may enjoy, the United States has only one chief executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass,” she wrote. A unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit agreed in February.

Smith went to the Supreme Court right after Judge Chutkan’s December decision, asking for an expedited ruling on Trump’s claims. Instead the high court waited six months, in sharp contrast to its quick ruling in the Colorado case on whether Trump’s indictments disqualified him from being on the ballot—in that case, an expedited ruling served Trump’s interests.

In his 43-page ruling, Roberts gave the lower courts a precise road map to exonnerate Trump from wrongdoing, using tortured logic. For instance, the majority decision held that Trump cannot be prosecuted for attempts to “leverage the Justice Department’s power and authority to convince certain States to replace their legitimate electors with Trump’s fraudulent slates of electors.” This is presumably an official action, however illegitimate.

The court also held that Trump is “presumptively immune” from prosecution for his heavy-handed pressure on Pence, because the president and vice president were discussing their official responsibilities. However, since the vice president’s post as president of the senate is not an executive branch role, Trump could conceivably be prosecuted for attempting to undercut that role. Roberts asked the trial court to review that the facts of that question.

Despite the disingenuous pretense of sending the case back to the lower courts, the Supreme Court left little doubt about the direction of its final ruling. The Court’s action today is an invitation to dictatorship, and one more cost of Trump’s having been allowed to name three justices. Had the Supreme Court ruled similarly on Richard Nixon’s claims of being above the law, Nixon never would have been forced from office.

The Court is now a corrupted institution and a shameless enabler of a corrupt president.

In dissent, Justice Sonia Sotomayor wrote, “The court effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding.” She added: “When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution.” For example: “Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”

She concluded: “Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law.... With fear for our democracy, I dissent.”

And in a separate dissent, Justice Ketanji Brown Jackson called attention to the Court’s own power grab. She wrote: “Effectively, the Court elbows out of the way both Congress and prosecutorial authorities within the Executive Branch, making itself the indispensable player in all future attempts to hold former Presidents accountable to generally applicable criminal laws.”

While we still have some semblance of a democracy, there is only one way to rein in both Trump’s dictatorial ambitions and this captive court. Trump must be defeated in November.