Immunity and Hypocrisy

On April 25, the Supreme Court (finally) heard oral arguments on Donald Trump’s absurd claim that even if he ordered the assassination of, say, Jimmy Kimmel, either while president or afterward, he would be immune from prosecution.  If he were still in the Oval Office, he allowed, he could be tried by the Senate, assuming the House voted to impeach him.

While Trump’s gleeful gadfly was not mentioned during the hearing, neither essentially was Trump.  In its zeal to avoid taking any action that might permit the legal process (euphemistic as that term seems to be with the conservative justices) to move forward in one of the most important trials in American history, the only occasion in which a president may genuinely have tried to prevent a peaceful transfer of power, the justices comfortably retreated to a series of hypotheticals, which in theory would allow them to (eventually) arrive at what Neil Gorsuch called “a decision for the ages.”

It must be borne in mind that in addition to the grass-growing speed in which it scheduled the hearing, the Court had already severely truncated the decision’s reach by limiting the argument to “official acts during his tenure in office.”  As I wrote in an earlier piece, “That sentence reeks of subjective terminology, restricting the question to former presidents who were alleged to have committed crimes through official acts while in office, leaving aside if a president, former or current, can be prosecuted for unofficial acts, such as, say, rape.”

Halving the case once more, the conservative justices, with the exception of Amy Coney Barrett, pretended that the specific crimes of which Trump was accused were of no importance, but rather that lofty legal and political principles were the reason for the protracted pace and the hearing at hand.

In a scene that could have been written by Beckett or Ionesco, Samuel Alito, who seems to regret that he was born too late to be an Inquisitor, suggested that the justices should allow Trump to violate the basic tenets of American democracy in the name of protecting American democracy.

In a rather risible example, he asked, “If an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement, but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?”

While Alito was correct in noting the danger of the persecution of a defeated opponent who had been turned out of office, he is simply too intelligent not to have had some awareness that what he was describing was precisely—and uniquely—what Donald Trump would leap to do if he were ever again allowed to occupy the White House. 

Elena Kagan did her best to respond, noting that the Framers “were reacting against a monarch who claimed to be above the law. Wasn’t the whole point that the president was not a monarch and the president was not supposed to be above the law?”

But the liberals could not budge the seeming determination of Alito and his fellow conservatives to avoid having Trump stand trial in federal court before the November election.  Aware that even they could not drag out their decision that long, Roberts, Gorsuch, and Kavanaugh hinted that it might be necessary to send the case back to district court to determine whether the charges against Trump fell into the category of “official” conduct, for which he would then be barred from prosecution.

That would surely solve their problem since it would require months of new filings, new hearings, and new delays, making a trial before November impossible. That, in turn, would renew Trump’s faith in “his justices” since if he defeats Biden, he will simply end the prosecution and continue trampling on the very Constitutional norms that the nine somber, berobed justices are sworn to protect.

The larger issue here—if there can be a larger issue—is whether the United States has moved past the point that there is any real accountability at all from its elected and appointed leaders.  In the House of Representatives, gerrymandering has rendered many districts just this side of lifetime tenure, with the number of competitive districts shrinking by the year.  The Court, although giving glimmers of taking on the problem, generally turns blind eyes by refusing to adjudicate “political questions.”  (Unless, of course, it is a political question that serves their interests.) In the Senate, more than half the seats are controlled by less than a fifth of the population, a sort of nation-wide gerrymandering.  The immunity decision, even if it is limited to the highly subjective category of official acts, will move the nation further in the direction of unaccountability.

But the biggest problem with acquired immunity is on the Supreme Court, which has been allowed to become a government unto itself. 

This was never the intention of the delegates to the Constitutional Convention.  For four long, hot months in Philadelphia, where, for secrecy, the windows were bolted shut, guards were posted at the door, and the temperature reached 90 degrees, delegates who did not know and often did not like one another wrangled to try to find a means of government that would provide some centralized authority without granting any branch sufficient clout to wield despotic power over either the other branches or the states.  It stretches credibility to believe that in the midst of all this, they would be willing to create one branch of government—the one they most distrusted—that consisted of unelected, lifetime members with no checks on their authority or power, short of impeachment, which was made intentionally impracticable. That the judiciary has managed to avoid the checks the delegates intended, but, alas, did not specifically include in Article III is perhaps the greatest threat to democracy that confronts the nation…unless Trump is re-elected.

And so, in some ways it is not surprising that justices such as Alito, Thomas, Kavanaugh, and even John Roberts, do not look askance at Donald Trump enjoying immunity while blithely violating both his oath of office and the law.

If they can do it, why shouldn’t he?