Scott Hardie | April 26, 2024
Just when I think that there's a common-sense issue about which Samuel Alito and I could not possibly disagree, he manages to flabbergast me yet again. They haven't issued a ruling yet, but this week the conservatives on the Supreme Court indicated openness to Donald Trump's claim of presidential immunity, meaning that he cannot be prosecuted for some or all of his actions while president.

That's just completely absurd, right? That's the sort of monarchical abuse of power that we fought a revolution to be rid of. It seemed like Trump was just filing every possible motion that he could to delay his trials, one of his standard throw-everything-at-the-wall-to-see-what-sticks legal defense tactics, and that the Supreme Court would certainly toss out this obviously baseless claim... and yet, here we are, with at least some of them seemingly open to ruling in his favor.

Let me get this straight:

“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, adding that the prospect of criminal prosecution would make that less likely.
So a president should resist a peaceful transfer of power if he believes that he'll be prosecuted (justly or not) by his successor? In other words, it's our responsibility as citizens to accept his illegal acts and abuses of power peacefully, rather than his responsibility as our elected official to transfer power peacefully to whoever we elect? That reasoning is madness. I do not understand how a human being can physically fit his entire head up his own ass like this.

“Will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?” he asked. “And we can look around the world and find countries where we have seen this process, where the loser gets thrown in jail.”
Yes, and I'm glad you mentioned that, Sam. Most countries do in fact prosecute their former leaders for abuses of power, because that's a very normal thing for healthy, functional societies to do. Those leaders who are prosecuted purely for political reasons are rare, and they have many rights and protections afforded to them by the legal process—you do trust the American legal process that you're a supreme jurist of, right Sam?—and allowing presidents free reign to break the law would very much be overkill as a solution, anyway. To put it another way: Ever since Black Lives Matter and the George Floyd protests, there's been increased awareness that the criminal justice system imposes unjust punishments on Black people, but no one who's serious would argue that the solution ought to be Black people having court-approved freedom to break any laws that they please. Samuel Alito definitely wouldn't.

Justice Gorsuch identified what he said was another negative consequence of allowing prosecutions of former presidents. “It seems to me like one of the incentives that might be created is for presidents to try to pardon themselves,” he said.
Gosh, we couldn't possibly pass a simple law or court ruling to clarify that Article II, Section 2 of the Constitution doesn't apply to the president pardoning himself. That would be silly! We're just going to have to allow the president to do whatever he wants. It's really the only possible way to resolve this!

Look, whatever my feelings about Trump, this isn't about him. I felt nauseated every time I read reports of another extrajudicial assassination carried about by Barack Obama. They weren't technically illegal, since Obama technically used secret courts with classified rulings to get "approval" each time, but that legal protection was about as meaningful as Homer Simpson's "give me no sign." This is about whether we're going to continue granting presidents more and more and more power until they're unstoppable. When we as a country have to debate whether our leader should be allowed to break the law without being prosecuted, we're in serious danger.

What do you think?

Scott Hardie | April 26, 2024
To further nitpick Gorsuch about self-pardons:

We don't yet know for sure whether a president has the power to pardon himself, because no president has yet tried it and given the courts a chance to weigh in. But either he does or he doesn't, right? We'll find out when the time comes, but it will go one way or the other, or otherwise be clarified somewhere in the middle (like, he can self-pardon for X category of crimes but not for Y).

So, either the president does have the power to pardon himself for the sort of crimes that his successor would attempt to prosecute, in which case that's his legal prerogative and Gorsuch's point is moot, or he does not have the power to pardon himself, in which case prosecutions will proceed to happen (or not) and Gorsuch's point is moot.

What is Gorsuch worried about? That he'll attempt to pardon himself, thus forcing courts or Congress to clarify his power once and for all? I don't understand what ominous point Gorsuch is trying to make here.

Erik Bates | April 30, 2024
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Samir Mehta | May 2, 2024
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Scott Hardie | May 4, 2024
Does anyone besides me consider the cause of "states' rights" to be merely pretense? I find it deployed as a principle only when someone dislikes certain federal laws and wants exemption. We have laws at all kinds of levels -- municipal, county, state, federal, international -- so I find it hard to believe that someone is sincerely worked up about whether a given law exists at this arbitrary level or that one.

Similarly, Originalism and Textualism have always seemed to me to be lies that disguise the real cause, Getting Our Way. I'm no legal scholar, but I'm aware of their basis as a backlash to modern judges interpreting the Constitution based on the current moral values of our society, That strikes me as the sort of cause that only someone who doesn't like the rulings would champion. Alito has been called both an Originalist and a Textualist, but when it came to his most infamous ruling, he seemed to discard both philosophies in favor of interpreting the Constitution based on his own current moral values. And now, his line of questioning regarding Trump's potential immunity is more of the same. I really do not understand his basis for so much of this reasoning -- it's not there in the law, it's not there in historical understanding of the law, it's not there in common understanding, and it's not even there in plausible future hypotheticals.

What once seemed impossible now seems inevitable: I wonder how long it will be until a president flagrantly disobeys a Supreme Court ruling that he doesn't like. There are no legal consequences for doing so, only electoral ones, and Trump clearly has enough popular support to do as he pleases.

Erik Bates | May 5, 2024
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Scott Hardie | July 1, 2024
I'm sure you can guess how I feel about today's 6-3 ruling in favor of the idea that presidents are immune to prosecution for "official acts," a caveat that is essentially meaningless, since the court stipulated that prosecution for private acts cannot use evidence pertaining to official acts. So a president can break any law, any time, and merely declare that "I was acting in my official capacity as president" in order to avoid any consequences. As Sonia Sotomayor wrote in dissent, "[The president] orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune."

The most heartbreaking part of the afternoon was talking to an Uber driver, a Venezuelan immigrant who brought his family here to escape political persecution from an utterly corrupt dictatorship that imprisoned its enemies and weaponized the state against its own citizens. His voice shook as he explained that this is how things unfolded there, first with a demagogue who turned the people against each other, dividing families and friends into "loyalists" and "enemies," and then [the driver made a gesture like blowing out birthday candles] simply blowing down all of the institutions that would stop him, because not enough people remained who could stand up to him.

To reiterate what I said before, i don't care about Trump or Biden in this matter. To be morbid, they're both likely to be deceased in a few years anyway. I'm disappointed in the news media framing this primarily through the lens of present-day politics, as in "this will delay Trump's trial until after the election" or "how will this affect Biden's re-election chances?" Forget them for five minutes. Today's decision is way more important than them. Giving a president freedom from criminal prosecution invites malfeasance, permits corruption, prevents order, violates fundamental American principles, and is totally unnecessary, as any president so accused already has plenty of means to mount a capable defense if unjustly prosecuted. Sotomayor called it "utterly indefensible," and I would add that it's utterly bullshit.

So, police cannot be held accountable for their lawbreaking, Supreme Court justices cannot be held accountable for their corruption, the gun industry cannot be held accountable for its violence, companies cannot be held accountable for their lawbreaking (nor as of this court term, for lying to shareholders), politicians cannot be held accountable for electoral interference, and now, as of the last few days, companies cannot be held accountable by federal agencies and the president cannot be held accountable for lawbreaking. And we wonder why Americans are rapidly losing faith in their institutions. Apparently law has no meaning any more and entities can simply do whatever they please with impunity, and no one can charge them with a crime or sue them for violating civil rights. Terrific! This is definitely not at all destabilizing to civil order! This country is failing slowly, and at some point it will fail very quickly. (I would be remiss if I did not mention last week's ruling that the Sacklers CAN be held accountable for the opioid epidemic, which genuinely shocked me merely by bucking the trend.)

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