Donald Trump’s Day at the Supreme Court


Donald Trump is nothing if not a dreamer. In seeking to return to the Presidency, it’s as though he has reimagined America as a kingdom and himself the king, an absolute ruler whose actions, no matter how sordid, cannot be stopped or subject to prosecution in a court of law. And yet what remains most remarkable is how far down the road to fulfilling this fantasy he now is, and how many millions of Americans he has managed to carry along with him: the Republican primary voters who, overwhelmingly, chose him again as their party’s nominee; the Republican officials, such as former Attorney General Bill Barr, who, despite condemning Trump for calling forth violence and illegality in his effort to overturn the 2020 election, are nevertheless endorsing him this year; the advocates on and off his payroll who say that a federal criminal case against him must be thrown out because, as President, he had every right to seek to overturn the election. This is the Richard Nixon theory of the executive taken to its circular and oh-so-Trumpian extreme: if the President does it, by definition, it is not illegal. “I have the right to do whatever I want as President,” Trump said when he was in the White House.

On Thursday, Trump’s legal team asked the Supreme Court to take this both literally and seriously, advancing his fantastical claims about an unfettered Presidency in oral arguments at the Court, where, alarmingly, they received a respectful hearing. So here we are in the midst of this most consequential election year, debating things such as whether a President has the power to accept bribes for official appointments, to sell nuclear secrets to a foreign adversary, or even to call forth a military coup to remain in office. How is it possible in the United States of America that the answer to any of these questions could be yes? And, yet, strip out the hemming and hawing, the polite citations of Marbury v. Madison and the sayings of Benjamin Franklin, and the answer from Trump’s lawyer to all of the above was more or less: Yes.

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In a remarkable dialogue with that lawyer, D. John Sauer, Justice Sonia Sotomayor established that Trump believes he should even have the right to order the assassination of a political opponent without fear of prosecution. Yup, we’ve reached the point of the election year where Trump’s lawyer says it’d be O.K. if Trump were to order a hit job on a rival—and is not immediately laughed out of court. The claims advanced by Sauer on behalf of the most powerful man in the world were so sweeping that, eventually, Justice Ketanji Brown Jackson was left to wonder “what the disincentive is from turning the Oval Office into the seat of criminal activity in this country.”

It says everything about Trump that these are the questions debated and dissected on his behalf. It says everything about this Supreme Court—a radical right-wing bench that Trump reshaped with his appointments—that several conservative Justices hardly seemed bothered by this absolutist vision of the Presidency. And yet, notably, I did not hear any of them specifically defend Trump’s indefensible conduct or the tremendous overreach recommended by his lawyer; instead, they invoked fears of unwarranted prosecutions against other former Presidents—not this one, they insisted somewhat sanctimoniously, but unnamed others. “I’m not talking about the present case,” Justice Brett Kavanaugh said. “I’m talking about the future.” Justice Neil Gorsuch agreed, stressing this was not so much about Trump as it was about debating “a ruling for the ages.”

Whereas the liberal Justices worried about the consequences of having a President on an unconstrained crime spree, several conservative Justices conjured a “dystopian” future, as the government’s lawyer, Michael Dreeben, called it, in which the American Presidency, once subjected to the same criminal laws as the rest of the country, could become a fearful and neutered office, trapped in never-ending cycles of legal revenge and retribution as the vicissitudes of politics dictated. On this point, it was hard to entirely disagree. Can one imagine a reëlected President Trump ordering his Justice Department to prosecute Joe Biden for this or that imagined offense? Of course! This is not a theoretical threat, after all, but one that Trump has already made several times.

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By the end of the nearly two hours and forty minutes of oral arguments, it seemed likely that the outcome would not so much vindicate Trump’s outlandish claims as provide the further delay that he has sought. Several conservative Justices, including Chief Justice John Roberts, specifically raised the option of sending the case back to the lower courts, perhaps to set a clearer standard dividing non-prosecutable official acts from prosecutable private actions. It is, apparently, impolite to bring up raw politics in Supreme Court oral arguments; no one said a word about the immediate real-world consequences of the Court’s forthcoming decision in this case. But there should be no illusions: given the calendar, any delay would practically guarantee that the special counsel Jack Smith’s case against Trump for seeking to overturn the 2020 election results will not go to trial until after the 2024 election. In other words, the Court would be taking Trump’s side, even without explicitly taking Trump’s side.

I’ll leave it to the legal analysts to sift through the relative merits of Thursday’s oral arguments. The disastrous ending of Trump’s tenure in the White House certainly presents a host of previously uncontemplated problems for the Supreme Court to rule on. But the bigger problem is that Trump’s challenge to American democracy is not principally one of legal doctrine. It is about a scary, straightforward question: whether the institutions set up to constrain an out-of-control President can or will do so when the actual crisis hits.

And to be clear: this is the actual crisis. The present worry is not what some theoretical future President will do to destroy the constitutional order but what this specific former President has already attempted to do and threatens to do once again. Considering Justice Jackson’s warning about a criminal unfettered by criminal laws sitting in the White House, it is worth reviewing the latest developments in Trump’s other ongoing legal dramas. In Arizona this week, an array of Trump’s advisers were indicted in connection with the former President’s fake-elector scheme, which is also a key part of the federal case against him. Trump himself was named as a co-conspirator and not charged, though his former White House chief of staff, Mark Meadows, his attorney Rudy Giuliani, and sixteen others were. The case is the fourth state case—others are ongoing in Nevada, Michigan, and Georgia—in which allies of the former President are facing criminal proceedings related to the false and unproved allegations of voter fraud which they advanced on Trump’s behalf. The case, as with so many before it, raises one of the painful questions of our time: Can it really be, once again, that everyone but Trump will be held accountable for the wrongs committed on Trump’s behalf?

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This is the same question at issue in a New York courtroom, where Trump is now standing trial on state charges related to the payment of hush money to stop the publication of embarrassing stories about him before the 2016 election. His former lawyer Michael Cohen has already pleaded guilty and gone to prison after confessing to the scheme involving a hundred-and-thirty-thousand-dollar payoff to the former adult-film star Stormy Daniels, among other wrongdoing. But not Trump, who sat glaring in the Manhattan courtroom on Thursday as his lawyer in Washington sparred with the Justices on the Supreme Court.

This is a man who believes he is fully above the law. Jail time is something that happens to other people, not to him. “A President has to have immunity,” he told reporters outside the courthouse. “If you don’t have immunity, you just have a ceremonial President.” Sometimes, I guess, it really is better to stand on ceremony. ♦

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