Before July 1, I would have said Donald Trump was the most dangerous man in America.
I was wrong.
The most dangerous men in America are five unelected guys on the U.S. Supreme Court who are ungoverned and ungovernable. In a matter of days, they have willfully and with no thought to either the Constitution nor the rule of law as were created in this very city in July 1787 during the Constitutional Convention — sans air conditioning, running water or ice — shattered that foundation. That democratic bedrock upon which we have, through trial and error — some of it horrifying, like slavery and the Civil War — built what we call “the American experiment,” was sundered by these men in service not to country nor the Framer’s broad vision, but to an ignominious fealty to Donald Trump.
On July 1, the five men on the court — Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh, with a grudging assist from a dissenting-in-part Justice Amy Coney Barrett — found in favor of Trump’s argument that the president of the United States must have immunity from criminal prosecution for his (or her) actions as president.
Had the three justices appointed to their Supreme Court sinecures by Trump recused themselves, which ethically speaking they should have done, this might have been either a 3-3 ruling or Roberts might have viewed things differently without their input and then we get 4-2. What we don’t get is this alarming slippery slope to destroying the artfully carved out checks and balances of the Constitution.
“A former president is entitled to absolute immunity from criminal prosecution for actions within his ‘conclusive and preclusive constitutional authority,’” the ruling, authored by Roberts, says. “There is no immunity for unofficial acts.”
The murky gray area that Barrett objected to was the undefined part: what constitutes an official act — or not? That aspect of the ruling is reminiscent of a long-ago ruling on pornography: In 1964, Justice Potter Stewart tried to explain “hard-core” pornography, or what is obscene, by saying, “I shall not today attempt further to define the kinds, I know it when I see it.”
Apparently, we will or will not know when a former or current president is breaking the law in a similar way. Perhaps when we see a head on a pike.
In the lower court hearings for the case of Trump v. the United States, one of the three women judges queried Trump’s attorneys: “Could a commander in chief order SEAL Team 6 to assassinate a political rival and not face criminal prosecution?”
Trump’s lawyer said he could, under certain circumstances.
That question was raised at the U.S. Court of Appeals in Washington in January, where Trump took his immunity fight after the theory was flatly rejected by U.S. District Judge Tanya Chutkan, who is overseeing his federal election subversion case.
On July 1, the Supreme Court answered the question, ruling that indeed the President of the United States could order Seal Team 6 to take out his opponent and be covered by presidential immunity, making the presidency both monarchy and dictatorship.
In her blistering dissent, the court’s most liberal justice, Sonia Sotomayor, wrote, “The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution.”
Sotomayor wrote, “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.”
Sotomayor added that the majority decision has “shifted irrevocably” the relationship between the president and the American people, being that “in every use of official power, the President is now a king above the law.”
In her own dissent, Ketanji Brown Jackson noted that the president’s removal of a cabinet member would constitute an official act and wrote that “while the President may have the authority to decide to remove the Attorney General, for example, the question here is whether the President has the option to remove the Attorney General by, say, poisoning him to death.”
She adds: “Put another way, the issue here is not whether the President has exclusive removal power, but whether a generally applicable criminal law prohibiting murder can restrict how the President exercises that authority.”
To be clear, a re-elected President Donald Trump — who keeps talking about retribution — can now actually shoot someone in the middle of Fifth Avenue and get away with it, as he always claimed his supporters would accept. Now, the nation’s highest court is in agreement with that once-flippant comment. The Supreme Court has said clearly and succinctly that the president can act with impunity and face no repercussions for his actions.
Laurence Tribe, a renowned legal scholar who is a University Professor Emeritus at Harvard University, constitutional law scholar, and co-founder of the American Constitution Society, and who argued the landmark Bowers v. Harwick case in 1986, spoke declaratively on the Court’s ruling.
The bottom line on what he termed a “naïve and sophomoric” Supreme Court decision: “Presidents will no longer be deterred by the threat of criminal prosecution.”
Tribe called the ruling “a recipe for autocracy.”
Neal Katyal, acting Solicitor General and Principal Deputy Solicitor General under President Barack Obama, told CNN’s Christiane Amanpour, “It’s really scary. The SCOTUS ruling is a big win for Trump and a big loss for the American Constitution and our democracy… a former president is going to have a massive amount of immunity for actions he undertook as president.”
House Minority Leader Hakeem Jeffries wrote on Twitter/X: “The Supreme Court majority has shredded whatever scintilla of credibility it had left.”
It is the zenith of irony that on the same day the Supreme Court gave presidents unlimited powers to protect Trump, there was an ongoing and concerted effort to take Biden’s power away due to a bad debate.
And yet the Chief Justice summarily dismissed Sotomayor and Jackson and by extension a myriad of legal scholars, writing, “As for the dissents, they strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today.”
Roberts added a brutal snipe at the justices’ intellectual competency, writing, “Coming up short on reasoning, the dissents repeatedly level variations of the accusation that the Court has rendered the President ‘above the law.’”
Also, this ruling by the Supreme Court basically guts impeachment, rendering it useless and meaningless. In February 2021, Senate Minority Leader Mitch McConnell, who was dedicated to stacking the courts for Trump said of the impeachment vote, “Trump is still liable for everything he did while he was in office…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.”
Not anymore. This is the slow shredding of the Constitution by the Trump SCOTUS. This has been completely vitiated by the Trump court’s immunity decision.
In a footnote of her concurring opinion, Justice Barrett writes: “Sorting private from official conduct sometimes will be difficult—but not always. Take the President’s alleged attempt to organize alternative slates of electors. In my view, that conduct is private and therefore not entitled to protection.”
Yet Monday night, Trump attorney Will Scharf told CNN’s Kaitlan Collins, “We believe the assembly of those alternate slates of electors was an official act of the presidency.”
In this 500-word-long post on Twitter/X highlighting the egregiousness of the immunity ruling, Rep.Adam Schiff, likely the newest California senator come November, says the only recourse is to “vote for a new Congress and a new Court.”
May I be so bold as to ask HOW we get that new court?
Sen. Tina Smith (D-MN) had a much more succinct response: “Expanding the Supreme Court is the rational, constitutional answer to this kind of extremism.”
Biden could use his new powers of presidential immunity to put Trump in jail, or even put the conservative justices themselves in jail, but in delivering their ruling, the Trump court was working on the presumption that only the man they were protecting would do such a thing to his opponent.
President Biden, quoting Sotomayor, said, “The presidency is now a law-free zone….The damage has been done. The president is now a king, above the law.” But he didn’t mean himself. Biden said he would not act on the ruling.
Chilling. Presidents are above the law. This is what Republicans want. Republicans control the courts, so they won.
Sotomayor for all of us who want a democratic republic: “With fear for our democracy, I dissent.”
Dissent, however, is not enough. As I wrote on Twitter/X on July 2, “The bad guys are winning, friends. What are you going to do about it?”
What indeed to do about the most dangerous men in America?