Today's postcard, and The Court of King Trump

July 2, 2024

Gopher snake coiled in the woods above the river

Thanks for your womb. Now, hand over your country…

David Frost: “In a sense what you’re saying is there are certain situations..where the President can decide its in the best interest of the nation, or something, and do something illegal.”

Richard Nixon: (nodding) “Well, when the President does it, that means it is not illegal.”

Frost-Nixon interviews, 1977

I think we should start with some good news, also from yesterday.

Donald Trump’s rage barker and former campaign guru Steve Bannon—having exhausted his appeals for defying a Congressional subpoena—is now in jail for four months.

Regrettably, this morsel of justice was eclipsed by the Supreme Court with a jarring, historic, majority opinion written by Chief Justice John Roberts.

This is the Supreme Court that Donald Trump brags about to fire up his base. It is the 6-3 majority (all appointed by Republican presidents) of the John Roberts Court. It is the court majority that Trump and former Senate Majority Leader Mitch McConnell delivered, both by way of appointment and by McConnell’s shameless maneuvering to prevent the appointment of Merrick Garland in the last year of Barack Obama’s presidency, and the rushed confirmation of Amy Coney Barrett in the last throes of the Trump Administration.

It is this court, this 6-3 majority, that repealed Roe v. Wade with its decision in Dobbs v. Jackson Women’s Health Organization two years ago. Moreover, in just the past couple weeks, the court has sandbagged executive branch regulation of polluting and resource consuming industries (Loper Bright Enterprises v. Raimondo) and quashed a Bureau of Alcohol, Tobacco and Firearms rule that forbade fitting assault rifles with “bump stocks” that enable firing rates in the hundreds of rounds per minute (Garland v. Cargill). (The ATF had enacted the “bump stock” ban after 60 people were killed and more than 400 wounded by a single gunman in Las Vegas in 2017.)

These were all immensely important cases. But the most profound was the one the court saved for Monday morning, the last morning of its term: Trump v. United States—the case brought by the ex-president asserting he’s entitled to broad immunity from prosecution, even for actions he took to foment the insurrection at the Capitol on 1/6/21.

L état c’est lui

We can be forgiven for thinking that this question had been settled, if not by the nature of the American Revolution (declaring independence from a monarch) then surely by the forced resignation and subsequent pardon of Richard Nixon. Informed by fellow Republicans that he would face impeachment if he didn’t resign, Nixon promptly did. He was also pardoned by Vice President Gerald Ford (a pardon Nixon accepted) because it was commonly assumed the ex-president would face criminal charges for obstruction of justice for trying to thwart the Watergate investigations.

Ford was publicly hammered for his pardon of Nixon. It was so controversial that even the White House Press Secretary, Jerald terHorst, resigned in protest.

By the Roberts court’s reasoning in Trump v. United States, Ford needn’t have bothered pardoning Nixon. Nixon wouldn’t have needed it, because his crimes were all committed in his official role as President.

When the Roberts Court held oral arguments in Trump v. United States in late April, it became clear the court’s conservatives were trying to parse the immunity issue, to create some daylight between “official” and “unofficial” acts. This fit with the assertion of Trump’s lawyer, D. John Sauer—that while Trump could be prosecuted for crimes involving his unofficial conduct, he is entitled to broad immunity for “official” acts. It led to this now-famous exchange.

Justice Sonia Sotomayor: If the president decides that his rival is a corrupt person and he orders the military or orders someone to assassinate him, is that within his officials acts for which he can get immunity?

Mr. Sauer: It would depend on the hypothetical. We can see that could well be an official act.

In the Roberts opinion for the court the “outer perimeter” of the President’s official immunity is stunning in terms of what it would allow him to get away with. After losing the 2020 election, Trump pushed his Attorney General William Barr to investigate allegations that Biden’s victory was enabled by widespread voter fraud. Barr did this and then tried to assure Trump that neither the Justice Department nor the Department of Homeland Security had found any such evidence. Days later Barr resigned. Trump continued working to push top Justice Department officials into making false statements that the election was rigged against him.

According to notes taken by a DOJ assistant to Acting Attorney General Jeffrey Rosen, Trump instructed Rosen and DOJ to “just say the election was corrupt + leave the rest to me and the R. [Republican] Congressmen.” Rosen’s response to Trump—also according to notes of a 12/27/2021 conversation—was that the Justice Department “can’t + won’t snap its fingers + change the outcome of the election.”

“Official” or Unofficial” one might ask, given that Trump had taken an oath to uphold the Constitution, and put the nation’s interests ahead of his own.

The Roberts court answer is “official” and in the majority opinion it places all conversations between Trump and the Justice Department out of bounds as evidence that could be used in a criminal proceeding. Moreover, the opinion obliterates any notion that Trump, or any other President, should divest his/her control over the Justice Department, even if that control would violate accepted norms of the Department’s independence within the executive branch. Assuming, for now, that the case moves forward, special prosecutor Jack Smith is forbidden from using any of the communications between Trump and Justice Department officials as evidence of Trump’s criminal intentions. (Here I should note that even though Justice Amy Coney-Barrett joined the majority in recognizing “official” immunity when it comes to core Presidential powers, she found the majority definition overly broad, wrongfully barring evidence from “official” acts that may shed light on criminal conduct.)

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—tjc