J. Scott Applewhite/AP Photo
… except for Republican presidents
It looks like some work needs to be done to the pediment atop the front doors of the Supreme Court (R). There, chiseled in marble in large letters for all to see, are the words “Equal Justice Under Law.”
The Republican justices’ comments during today’s oral arguments in the Trump immunity case made such a mockery of those words that those words will need to be replaced, or at minimum, augmented. Something like “Equal Justice Under Law, Except for Republican Presidents, Who Are Henceforth Immune When They Violate It.”
That’s a lot to chisel, but chiseling (and worse), if you’re a Republican president, is now OK.
As the special prosecutor’s case against Donald Trump for inciting a violent mob seeking, at his behest, to overturn the results of the 2020 presidential election wended its way through lower courts, those courts found no merit in Trump’s claim that anything he did while president was not subject to U.S. law because presidents are immune from U.S. law’s strictures. Only when the case reached the Supremes did it find Republican judges so partisan that they were willing to grant immunity to Republican presidents’ running amok.
While most of the Republican justices seemed willing to imply that not every action a president commits is inherently immune from the laws that every other American is obliged to follow, they made clear that courts had to distinguish those actions made as president from those actions made, say, as a candidate, or a bribe recipient, or an abusive husband, or a belligerent drunk. And unless they choose to spell out these distinctions in their own ruling, the Republican justices are likely to send this case back to the federal district court whence it originated, requiring the judge there to rule which of the charges brought against Trump pertain to his presidential duties and must therefore be dismissed, and which do not. This would surely push Trump’s trial into next year, or into never-never land should Trump win the November election.
Rather than deal directly themselves with the case filed against Trump, most of the Republican justices sought to cloak themselves with a patina of concern for larger questions. “We’re writing a rule for the ages,” Justice Neil Gorsuch (R) intoned, raising the specter of future presidents being persecuted during their well-deserved retirements.
The redoubtable Sam Alito (MAGA) expanded that thought to the point that it quite reversed the identity of the guilty parties in the assaults to American democracy. The president who incited an insurrection? No, the prosecutors who’ve sought to hold him accountable.
“A stable, democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office peacefully,” Alito said. Then, however, he noted that if a president thought he might be prosecuted for whatever he did to cling to the office, he would be likely to keep clinging by any means possible. So as to the possibility of post-presidential prosecution, Alito pondered, “Will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?”
In Alito-Land, it’s not the insurrection that destabilized American democracy, it’s prosecuting the guy who fomented that insurrection. Never mind that the case before the justices concerned whether fomenting that insurrection was a prosecutable offense.
No less than Chief Justice John Roberts (R) once warned against courts’ treating the case before them as a pretext to make some larger point that was not actually before the court. “If it is not necessary to decide more to dispose of a case,” Roberts wrote, “then it is necessary not to decide more.”
But simply by the fact that it decided not to rule immediately on Trump’s absurd case for blanket presidential immunity, and now with the likelihood that it will return the case for further study to the district court, the Court is effectively doing all it can to decide a great deal more: It is endeavoring to decide the upcoming presidential election in Trump’s favor.
In his “To be or not to be” soliloquy, Hamlet cites as one of the reasons to end it all “the law’s delay.” The delay that the Court’s Republicans have caused, and today further abetted, is shoving American democracy in the direction of “not to be.”
