I though it wise to read the post I created back in December of last year in respect to the Supreme Court and presidential immunity. Here is a link.
At the time, I innocently thought that there could be no way that SCOTUS would rule that a president has absolute immunity for any actions committed while in office, criminal or otherwise. I especially thought this considering this court's alleged deference to originalist interpretations of the constitution.
It just seemed unfathomable that anyone with any sense of American history and law would imagine that the founders wanted an American King to replace the British King they were rejecting with their Declaration.
I guess what I didn't count on was that the conservative judges on the Court would actually believe Trump's lies about his ongoing legal troubles being politically driven. How else can one account for their apparent decision to specifically rule that a president must not fear future prosecution for anything done while in office? That a president must not be chilled from making critical decisions.
I'm sorry, but in the four years of Trump's term, did you ever once see him chilled to comment or make a decision?
No past president, other than Nixon, claimed that anything done by the president while in office was legal. While the Supreme Court of that time ruled against Nixon, forcing him to release the Watergate tapes which proved his complicity in the cover-up, it seems that had Nixon been president with this SCOTUS, he would have not been forced to release the tapes, and perhaps survived an impeachment vote.
The question then is, why was I so oblivious to the hints that this Supreme Court would act so contrary to the one which ruled in 1974?
Remember, that decision was unanimous, 9-0 with four of the justices, including the Chief Justice, Warren Earl Burger having been appointed by Nixon, and three others by Republican presidents. At least for that decision, partisan politics did not come into play.
I guess in retrospect, the clues were there in plain sight. Trump often claimed how the three justices he appointed "owed" him some allegiance. While I would have thought that such a concept might have made any self respecting jurist bristle at such an idea, Kavanaugh, Gorsuch and Coney-Barrett must have thought differently.
Obviously Thomas was compromised, his wife being active in the Stop the Steal movement, and we have recently been exposed to the politics of Alito's wife, but still, one would have thought that these "men" would have valued their oath to the Constitution above their love for their spouses. More likely though, they share their wives' opinions of Trump, and see him as a victim in the machinations of political shenanigans.
And Roberts? I just don't get him. One day he supports opinions which seem to benefit all the people, the next he concurs on decisions that demonstrate allegiance to one man.
I have said more times than I can count, that I fear that our democracy is already lost. Between the millions of Americans who actually believe that the 2020 election was stolen, that mail-in voting is ripe with fraud, that the constitution provides for the Vice President to thwart the certification of a presidential election he lost, and now the knee bending of the Supreme Court to suggest that presidents have vast immunity for their core duties and presumed immunity for other executive branch related duties, it seems a fait au complet.
Sadly, I have heard a number of left leaning pundits state that perhaps Biden should use his new found powers to guarantee the existence of our democracy in November. I say sadly, because the suggestion seems to be that by using dictatorial powers, he can save democracy.
Folks, it doesn't work that way, hence the saying "absolute power corrupts absolutely".
By the way, if you are as curious as I was after typing that phrase, Lord Acton coined it in a letter to Bishop Creighton in 1887, his point being that the same moral standards should be applied to all men, political and religious leaders included. Sort of a direct contradiction to the "the ends justifies the means" theory of doing bad things for good reasons.
There is a small light still aglow, that being that presidential acts deemed private, or not part of the duties of the president, are not immune. But of course, SCOTUS didn't specify how to separate those acts. I would think that helping assemble fake electors in an attempt to provide the Vice President with enough confusion to delay certification of an election would be as far removed from official duties as one could get, but Trump's lawyers are already claiming that those actions fall within the scope of core duties.
If not for any other reason, I would hope to live in a universe where Trump loses in November and his federal trials (not to mention the Georgia one) go forward, and we see just how the Supreme Court will parse private from official acts when Trump appeals his convictions. Of course, Biden could choose to pardon him, which I would accept, assuming the pardon requires Trump to admit that the 2020 election was not stolen, that creating fake electors is not legal, and that he live out his life on Elba.
Unfortunately, I am resigned in the knowledge that the election in November does not matter. Trump will claim victory regardless of the results. Mike Johnson will do everything in his power to not certify the election, as will various state legislatures and election commissioners who have already showed their intentions.
I have read some opinions suggesting that because our democracy held once, it will survive a 2nd Trump term. Perhaps because Trump and his team will prove to be just as incompetent in their approach to governing as they were in his first term. Perhaps because our institutions will hold, and that enough true public servants will uphold their oaths to the Constitution. Perhaps because Trump will finally propose or do something that drives the GOP away from their allegiance to him.
But perhaps is not enough to make me feel hopeful. It is too flimsy a possibility when discussing the future of the American experiment in democracy.
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