Donald J. Trump vs the United States: Are the courts on the level?
The right-wing Supreme Court seems to be putting its thumb on the scales of justice to help Trump
Donald J. Trump is like a walking smallpox bomb, infecting and killing a little piece of US democracy everywhere he goes. Recently he became the first former president to stand in a criminal trial. Rather than meeting this historical moment with a measure of gravitas, yesterday the radical right wingers who control the US Supreme Court lost their moral compass entirely during oral arguments in Trump’s presidential immunity hearing.
The Three Black Robes of the Apocalypse – Alito, Gorsuch and Kavanaugh – seemed to seriously entertain Trump’s and his lawyers’ core argument that a president is legally shielded from any and all crimes, even the assassination of his political opponents.
Trump’s attorney, Dean John Sauer, in answer to hypothetical questions from the Justices, indicated with a Darth Vader-like straight face that presidential orders to murder political rivals or stage a coup might actually be subject to a broad immunity. In his opening statement to the court, he tried to equate President Joe Biden’s border policies, which he alleged “unlawfully induce immigrants to enter the country illegally” and for which Biden potentially could one day be criminally charged, with Trump’s attempt to overturn a free and fair democratic election to keep himself in power.
Trump stands accused of a sprawling effort to overturn the 2020 presidential election, including by seeking to recruit bogus slates of electors in a bid to alter vote counts and pressure an array of officials, from Vice President Mike Pence to the Secretary of State of Georgia, to reverse the results.
Such a joker, that Mr. Sauer. But InJustice Alito, um, trumped Trump, so to speak. As reported by New York Times court reporter Adam Liptak, Alito, “in an inversion of the conventional understanding of the Jan. 6, 2021 attack on the Capitol, said that a ruling for Mr. Trump could enhance democratic values.”
Say what?
Said Alito, “A stable, democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office peacefully.”
OK, I’m with you so far…explain further please… explain…
“The prospect of criminal prosecution would make that less likely” that the president would leave office peacefully, if we have a system “where the loser gets thrown in jail.” Right, sure, clear as your black robe. Let’s see, we’ve had 46 presidents in our 234 year history, and how many of them have not left office peacefully? None. No, wait, just one. Recently. Only one: Donald J. Trump.
So let’s call this the “Donald Trump Exception,” and it goes like this: we need to provide presidential immunity against all manner of crimes, no matter how heinous…otherwise we won’t be able to evict the criminal from the Oval Office. Even if he loses another election.
Apparently it does not occur to Alito and his fellow judicial acrobats that, more than likely, the presidential criminal will commit even more crimes as a way to hang onto the office. Such as truly steal an election (hey, his team has experience now), or jail his chief opponent. Since there is no downside of prosecution, why the hell not?
That’s quite a Catch-22, Joseph Heller must be rolling over in his grave. Such judicial brilliance, overseeing our Constitution and laws.
InJustice Kavanaugh went “fashionably faux high principle,” saying the court should be aware of the larger message of its decision. “This case has huge implications for the presidency, for the future of the presidency, for the future of the country,” he said.
InJustice Gorsuch added, “We’re writing a rule for the ages.”
Ya think? Like maybe some of your other decisions, such as overturning Roe v Wade?
The Justice Department attorney, Michael Dreeben, arguing on behalf of the special counsel, thankfully flipped the script. He asserted that any form of blanket immunity would place presidents entirely outside of the rule of law and encourage them to commit crimes, including “bribery, treason, sedition, even murder,” with impunity. “The framers knew too well the dangers of a king who could do no wrong,” he said.
Would-be King Trump faces a count of conspiring to disenfranchise voters, two counts related to corruptly obstructing a congressional proceeding, and another count of conspiring to defraud the government. On a High Court with a super majority of five far right-right-wing Republicans plus a sixth merely right-wing Republican outmatching three liberal Democrats, the Supreme Court is badly out of step with the public opinion of the greater US populace, where the number of registered Democrats and Republicans are fairly even in this 50-50 nation. There is no “proportional representation” on this Court, even though it acts like an unelected legislature in which “five votes beats a reason any day.”
Yet the Justices seem determined to put their thumbs on the scales of justice in favor of Trump. Not only do their arguments undermine the rule of law, but their lack of urgency on this case make it clear they intend to drag out this trial until after this November’s election. Compare that to how quickly the Black Robes acted in March to make sure that Donald Trump would be put back on the ballot in Colorado, and to stamp out the small brushfire of other states thinking of tossing that treasonous traitor off their ballot under Section 3 of the 14th Amendment for committing his act of insurrection.
And just last week, the court majority seemed sympathetic when it heard arguments by a MAGA Trump activist arrested for his role in the January 6 riot who is challenging the use of a federal obstruction law to prosecute members of the mob that stormed the Capitol. Two of the four charges against Trump are based on this obstruction law, and several of the right-wing justices seemed skeptical of the prosecution’s arguments.
It seems that slippery eel Trump is going to slide through the cracks and escape these federal charges over his role in the pathetic January 6 attempt to overturn a democratic election that he lost fairly and squarely.
It’s up to you, New York, New York
But Trump wasn’t in that SCOTUS courtroom in Washington DC. Instead he was in another courtroom to the north, up the I-95 corridor in New York City.
The trial of Trump in the Big Apple over alleged campaign finance violations involving hush money to a porn star has unleashed a drama that the 24 hour news cycle is feasting on. It’s like the OJ trial, with a gushing firehose of photos of a glowering Trump spewed across our TV screens, social media feeds, newspaper headlines, even Trump’s favorite National Enquirer in grocery checkout lines and dentist’s offices. In this case, Trump’s former consigliere Michael Cohen has already pled guilty to the same thing that his crime boss Trump is now charged with. Yet Trump thought him a fool, tweeting that he had pled to “two counts of campaign finance violations that are not a crime.”
That’s because nothing that Trump does, by definition, can be a crime, according to Trump.
But New York City district attorney Alvin Bragg disagrees. He has charged Trump with a 34-count indictment, alleging that he falsified business records in order to hide damaging information from coming out during the 2016 campaign about a couple of sexual affairs outside of his marriage. The allegedly falsified business records, Bragg said, were meant to hide a $130,000 payment made by Trump's then-attorney Michael Cohen, at Trump’s direction, to stripper Stormy Daniels to prevent her from going public with an allegation of a 2006 sexual encounter with Trump. In the state of New York, falsifying business records is a misdemeanor, but if it is done in furtherance of another crime, it becomes a felony.
Trump labels all this as a partisan hit job and elections interference, but in fact there have been many previous cases of people charged with very similar crimes. New York prosecutors regularly win prosecutions for felony violations of the state’s “books and records” statute on falsifying business records, including for conduct far less serious than the allegations against Trump.
For example, the Richard Brega case involved campaign finance violations which were prosecuted as a felony violation of New York’s books and records statute. The indictment charged Brega with ten felony counts of falsifying business records, namely “with the intent to defraud and commit another crime and to aid and conceal the commission thereof.”
Another earlier case that resembles the Trump prosecution is that of Clarence Norman. Among other similarities, Norman’s election law violations were treated as the prelude acts for a falsifying business records felony charge, a path that the district attorney’s case against Trump appears to be following.
In 2011, former Democratic presidential candidate John Edwards was charged with campaign finance violations for allegedly soliciting nearly $1 million from wealthy donors to hide an affair to maintain his image as a "family man" during his White House bid.
Those are just a few examples in which a books and records felony case was based on campaign finance violations. But in Trump’s case, while the facts of the case are strongly aligned against him, his attorneys’ legal maneuvers have been able to throw a lot of sand into the wheels of justice, nearly grinding them to a halt. One can’t help but wonder: in the United States, are the courts on the level? Or are there two systems of justice, one for a handful of elites and another for everyone else?
As the Tambourine Man himself, Mr. Dylan, once sang:
“In the courtroom of honor, the judge pounded his gavel
To show that all's equal and that the courts are on the level
And that the strings in the books ain't pulled and persuaded
And that even the nobles get properly handled
Once that the cops have chased after and caught 'em
And that the ladder of law has no top and no bottom
Stared at the person who killed for no reason
Who just happened to be feelin' that way without warnin'
And he spoke through his cloak, most deep and distinguished
And handed out strongly for penalty and repentance
Gave William Zanzinger….a six-month sentence.”
Democracy replaced by kakistocracy
Certain sectors of US democracy, led by an ex-president without honor or a sense of shame, have descended into kakistocracy -- rule by the least principled, most unscrupulous elements. Trump’s ubiquitous image on so many screens has become the Rorschach test of our times. When I close my eyes the images of his orange-ness won’t go away, having been imprinted into our collective psyches. We will never be able to un-know what we now know and have seen over and over, and I am not now only referring to Trump’s immoral crimes and possibly criminal ones.
No, I am referring to the fact that on a daily basis we see glaring proof that our “winner take all” political system is so broken that we cannot rid ourselves of this truly rotten human being. He is like a tick on the body politic, sucking out the lifeblood and hoping to infect the rest of us with his sociopathic, Joker-like evil: “I’m an agent of chaos.” Trump couldn’t have said it better himself.
It’s a race against time, because if Trump prevails in the November election and returns to the presidency, of course he will order the Justice Department to drop all charges against him. But that’s just the beginning of what this agent of chaos is capable of, and will do.
Just imagine a Donald Trump who has been unshackled by his “hip pocket” appointees on the US Supreme Court, who have adjudicated that there is nothing too outrageous that he can’t do as president and not be immunized against consequences or punishment. Clumsily trying to steal an election will be child’s play compared to weaponizing the federal bureaucracy against opponents.
At that point US democracy will have flushed down the toilet and transmogrified into a rather ugly post-democracy run by an odious tyrant. Liberal democracy and the debate of ideas will be marinated in the societal saturation of AI, deep fakes and manipulative digital media avatars, in which fiction masquerades as truth and you can’t always believe what you see and hear. Repression may be subtle or it may be blatant. The stakes will be all or nothing, and the boldness of anti-Trump reaction will be forced to awaken to the necessity of matching force with force.
The Roman Republic transmogrified into the Roman Empire, why couldn’t it happen again, and here? Those university campus students may be preparing themselves for something far worse to come.
Steven Hill @StevenHill1776