This analysis by Dahlia Lithwick and Norman Ornstein warning against the easy assumption that “the system will hold” appeared early last month, but it’s highly relevant to the Presidential immunity decision by the John Roberts’ Project 2025 Supreme Court.
It was just published in German by the Blätter für Deutsche und international Politik with this “1984”-ish illustration and the title “Rule of Law in the US: Red Alert”:
In general, the mainstream media have shrugged at these overt plans and troubling actions, and most voters either have not focused on them or have dismissed them as exaggerations or impossibilities. After all, our constitutional system has endured for almost 250 years, and the web of checks and balances is strong. There is evidence to support that optimism. We have just seen a historic moment in the rule of law: A unanimous jury of his peers found Trump guilty on 34 felony counts of falsifying financial documents to influence the outcome of the 2016 election. This was huge news for about three days, or maybe a thousandth of a news cycle as measured in Hunter Biden units. For a good two days, however, proponents of democracy and the justice system took to the airwaves with a message that was equal parts yogurt, mayonnaise, and vanilla: The criminal justice system works! The system held!“Someday” happened this week, with the Project 2025 Supreme Court’s July 1 decision in Trump v. United States. (2)
But conviction notwithstanding, there is reason to be alarmed—deeply alarmed. This one felony conviction was hardly a vindication of the American justice system. The system “held” only insofar as it was capable of somewhat muzzling the ongoing threats leveled by the defendant against the presiding judge and his family, the jurors and the witnesses, and the team of prosecutors who brought the case. The system held only insofar as efforts to bully and terrorize and bribe witnesses who have helped Donald Trump commit crimes with impunity for decades didn’t quite manage to silence all of those witnesses.
And, depressingly, the system only “held” insofar as it doesn’t collapse upon appeal, say if a someday–Supreme Court, summoned by Speaker Mike Johnson, decides, for no reason law would ever permit or condone, to step in and somehow scupper the whole conviction while giving Trump free rein to act with impunity. This is not fanciful; the current Supreme Court has justices who are partisan actors and likely a majority to give a great deal of leeway to Trump — and he would possibly be able to fill even more seats with loyalists like Judge Aileen Cannon, the jurist presiding comically in his favor in his classified documents theft case, willing to bend the justice system to fit his aims. Below the Supreme Court level, Trump would stack the judicial deck with more extremists like Judge Matthew Kacsmaryk and loyalists like Cannon. (1)
Dahlia and Mark Joseph Stern analyze the Presidential immunity decision in Slate:
On Monday, the Supreme Court handed down a much-awaited and long-delayed decision in Trump v. United States, testing the former president’s claim to absolute immunity from criminal prosecution for the events surrounding the attack on the Capitol on Jan. 6, 2021. The 6–3 decision, penned by Chief Justice John Roberts and joined by all of the court’s conservatives, broadly expanded the zone of presidential immunity in ways that fundamentally reshape the balance of powers in American government, creating extraordinary new protections for a president who seeks to break the law. As Justice Sonia Sotomayor warned in her dissent, if the president “orders the Navy’s Seal Team 6 to assassinate a political rival,” he is now “insulated from criminal prosecution.” The “relationship between the president and the people he serves,” Sotomayor continued, “has shifted irrevocably in every use of official power. The president is now a king above the law.” [my emphasis] (3)Yeah, it’s that bad.
If I had to identify one particular “lesson” of the experience of the German Weimar Republic and its infamous end, it would be that if enough citizens of a democracy want to get rid of democracy, and enough of the other citizens are indifferent to it, even the best institutional arrangements can’t save it. They can certainly help! But in the end, enough of the people and their elected representatives have to be actively concern and willing to act to stop it.
It's also worth remembering that the Weimar Constitution was considered a model liberal democratic constitution in interwar period. And in a purely technical sense, it “survived.” Hitler’s Third Reich never bothered to formally abolish the Constitution. They just ignored it. The Weimar Constitution technically, legally ended only on V-E Day and the unconditional surrender of the German government.
It’s up to the Democrats
The Republican Party is effectively all-in with Trumpism. Party figures like Mitt Romney or Liz Cheney that are at least more serious about supporting Constitutional government than most Republicans, are practically pariahs in that party now.
For the Democrats to break out of their idea that as long as the Democrats don’t call for abolishing the Constitution and their party gerontocracy keeps wealthy donors happy everything will work out in the end isn’t nearly good enough.
Rhode Island Sen. Sheldon Whitehouse is a solid establishment liberal, not a DSA militant. But he’s been very aggressive and outspoken on the corruption of the Supreme Court, a consideration the Democrats should have been taking far more seriously than they have been since Senate Judiciary Chairman Joe Biden in facilitated the Senate approval of the massively corrupt rightwing insurrectionist Clarence Thomas to be on the Supreme Court in 1991. Biden’s Committee voted to send the nomination to the without a pro- or con recommendation.
Good ole Joe, he’s a moderate. He knows how to “reach across the aisle.” Unfortunately, Thomas’s sugar daddy Harlon Crow knows how to pass the cash. (4)
A rogue Supreme Court
The Supreme Court, along with the rest of the federal judiciary, is a political body in the sense that it is part of the government and is subject to appointment, confirmation, and if necessary, removal by the representative elected branches of government. The concept of “rule of law” includes the notion of an independent judiciary, i.e., one not subject to immediate political pressures or amenable to corruption. It also includes the idea that constitutions, laws, and precedents matter and that the courts have to observe some deference to legal traditions. Even legal precedents established in British common law before the US Constitution was approved still occasionally have some relevance since most US states formally recognizes the relevance of “common law.” (5) Only Louisiana uses a “civil-law” form instead of common law.
One of the challenges in the current framing of liberal democracies vs. autocracies is that even aspiring autocrats in the West know that democracy and the rule of law tend to be popular among voters in countries where those traditions are strong. The direct challenges to Western-style liberal democracies are more likely to aim at establishing an “illiberal” democracy, for which Hungary’s Viktor Orbán is a favorite poster boy. “Post”-fascist Italian Prime Minister Georgia Meloni is proposing a new electoral system that would take Italy a long way down that road. (The “liberal” in liberal democracy refers primarily to limits on autocratic power, not the purely economic liberalism worshipped by people like Argentina’s current “anarcho-capitalist” President El Loco is not at all compatible with liberal democracy.)
Except when they just want to knock off one of their enemies. In her dissent on the Presidential immunity case, Justice Ketanji Brown Jackson in her dissent warned:
The vision John Adams enshrined in the Massachusetts Declaration of Rights—“‘a government of laws and not of men’”—speaks directly to this concept. Mine Workers, 330 U. S., at 307 (Frankfurter, J., concurring in judgment). Adams characterized that document as an homage to the Rule of Law; it reflected both a flat “rejection in positive terms of rule by fiat” and a solemn promise that “[e]very act of government may be challenged by an appeal to law.” Id., at 308. Thanks to the majority, that vision and promise are likely to be fleeting in the future. From this day forward, Presidents of tomorrow will be free to exercise the Commander-in-Chief powers, the foreign-affairs powers, and all the vast law enforcement powers enshrined in Article II however they please — including in ways that Congress has deemed criminal and that have potentially grave conse¬quences for the rights and liberties of Americans.Justice Sonia Sotomayor dissent warned that the ruling “in effect, completely insulate[s] Presidents from criminal liability.”
Whether described as presumptive or absolute, under the majority’s rule, a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution. That is just as bad as it sounds, and it is baseless. Finally, the majority declares that evidence concerning acts for which the President is immune can play no role in any criminal prosecution against him. ...My first reaction to the ruling was essentially, holy ****, this is bad! The more I look at it, the more that conclusion seems spot on.
The majority calls for a “careful assessment of the scope of Presidential power under the Constitution.” ... For the majority, that “careful assessment” does not involve the Constitution’s text.
The majority ignores, however, that the Impeachment Judgment Clause cuts against its own position. That Clause presumes the availability of criminal process as a backstop by establishing that an official impeached and convicted by the Senate “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Art. I, §3, cl. 7 (emphasis added). That Clause clearly contemplates that a former President may be subject to criminal prosecution for the same conduct that resulted (or could have resulted) in an impeachment judgment—including conduct such as “Bribery,” Art. II, §4, which implicates official acts almost by definition. [my emphasis in bold]
And as Sotomayor warns, if enemies of the President suddenly start slipping and falling out of the windows of high buildings like several of Vladimir Putin’s critics have, the Project 2025 Supreme Court says that’s okey-doke:
Imagine a President states in an official speech that he intends to stop a political rival from passing legislation that he opposes, no matter what it takes to do so (official act). He then hires a private hitman to murder that political rival (unofficial act). Under the majority’s rule, the murder indictment could include no allegation of the President’s public admission of premeditated intent to support the mens rea of murder. That is a strange result, to say the least.I won’t go on much longer in this piece except to say that there have been situations where the Supreme Court went far beyond any reasonable authority and caused great damage. The most infamous was the 1857 Dred Scott decision, which effectively eliminated any reasonable possibility of resolving the slavery issue without a civil war. The Civil Rights Cases of 1875 (6) and Plessy v. Ferguson (1896) facilitated and validated the establishment of Jim Crow segregation in the South and the wide-scale annulment of the 14th Amendment’s clear statement of the right of equal citizenship. No one at the time genuinely committed to equal citizenship and the protection of citizens’ lives from official and vigilante violence was unclear about the effect of those decisions.
Later decisions by reactionary Supreme Court majorities that tried to block antitrust laws and New Deal federal programs were also recognized by liberals and progressives in real time as crass abuse of judicial power for reactionary purposes. Conservatives recognized the same thing, of course, but they pretended to think the Court was acting on pure abstract legal principles.
There has been some dark humor around the fact – and it is a fact, as Sotomayor’s dissent dramatically notes – that the Project 2025 Roberts Court just handed President Joe Biden the power to do what he wants with not legal constraints on him. She made the point herself in a serious way. But Biden was quick to say that, oh no, he wouldn’t even consider doing such a thing, goodness gracious, no. And he’s right.
But would Thomas Jefferson or Andrew Jackson or Abe Lincoln or Franklin Roosevelt have made such a nicey-nice response? Oh, hell, no. LBJ was already breaking laws in his surveillance and “active measures” against dissenters and with his own White House taping system. But Johnson would have responded with something like, “Gee, that fool John Roberts and his corrupt Republican cronies just said it would be okay for me to arrest them for taking bribes without going through the usual legal process. Are they out of their minds?” And made sure that the press knew he had said something like that. LBJ believed in fighting for his own side.
The former Oklahoma Sen. Fred Harris, who ran for the Democratic Presidential nomination in 1976, used to tell the story in his campaign speech that when LBJ appointed to the Kerner Commission that was supposed to make a formal assessment of what was causing urban riots, LBJ told him, “’Fred, if you screw this up, I’ll cut your balls off.”
Democrats really, really need to take a lesson from people like FDR in his fight with Court, and from present-day examples like Sheldon Whitehouse and fight for their own side against a blatantly corrupt, rogue Supreme Court.
Notes:
(1) Can the President Send SEAL Team Six to Assassinate His Rival? After Monday, Yes. Slate 07/02/2024. <https://slate.com/news-and-politics/2024/07/supreme-court-trump-immunity-president-seal-team-six-assassinate-rival.html> (Accessed: 07/03/2024).
(2) Trump v. United States decision. Supreme Court website 07/01/2024. <chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf> (Accessed: 2024-01-07).
(3) Lithwick, Dahlia & Stern, Mark Joseph (2024): Can the President Send SEAL Team Six to Assassinate His Rival? After Monday, Yes. Slate 07/02/2024. <https://slate.com/news-and-politics/2024/07/supreme-court-trump-immunity-president-seal-team-six-assassinate-rival.html> (Accessed: 2024-03-07).
(4) Rappaport, Adam & Faulkner, Meghan (2023): Harlan Crow’s deep dark money connections. CREW 06/15/2023. <https://www.citizensforethics.org/news/analysis/harlan-crows-deep-dark-money-connections/> (Accessed: 2024-03-07).
(5) Kiralfy, Albert Roland, et. al. (2024). common law. Encyclopedia Britannica 054/19/2024. (Accessed: 2024-03-07). <https://www.britannica.com/topic/common-law> (Accessed: 2024-03-07).
(6) Urofsky, Melvin I.. Civil Rights Cases.. Encyclopedia Britannica, 10/08/2023. <https://www.britannica.com/topic/Civil-Rights-Cases> (Accessed: 2024-03-07).
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