The shift from a republic to a rotating tyranny was years in the making but the final blow still managed to shock: A Supreme Court that had just declared it a crime to be poor and homeless ruled that Donald Trump, previously and perhaps soon once again the world’s most powerful man, cannot be prosecuted for anything that a president’s lawyer (or conservative jurist) might spin as an “official act.” Legal experts say the decision effectively legalized executive criminality, ensuring that whoever occupies the White House — at least any Republican — can do as they please with the powers of their office, effectively constrained only by the threat of impeachment, which is hardly any threat at all, or a loss in a free and fair election.
The expansiveness of the decision was indeed not lost on Trump’s attorneys, who immediately sought to overturn their client’s 34 felony convictions in New York — a move dismissed as absurd by many legal experts who may prove to be right but who also, perhaps, have not come to terms with the fact that falsifying business records to cover up a hush-payment to an adult film star ahead of a federal election may now be a core constitutional right.
“The strongest evidence against former President Trump’s claim of immunity is found in the words of the Constitution,” stated the U.S. Court of Appeals for the D.C. Circuit, the court that previously took up the question of “absolute immunity.” Nowhere in the country’s founding document is it ever suggested that the holder of the highest office may have free rein to break the law, so long as as that transgression has so much as a tenuous connection to being president. In fact, as the lower court noted and the Supreme Court ignored, it explicitly states that public officials may be subject to “indictment, trial, judgment and punishment, according to law.”
Despair is not a productive emotion, but there should be no sugar coating the reality that an American president is no longer bound by the laws of this country; not in a meaningful sense, certainly, with any attempt at justice via the courts now likely to be delayed by months if not years of litigation that could always end right back in the hand of a 6-3 reactionary majority.
There is, however, a silver lining — or rather, a consolation prize: When the Supreme Court shredded the rule of law on behalf of a man who tried to overturn democracy, Chief Justice John Roberts and the gang told another judge to figure out whether inciting an insurrection on Jan. 6 to upend an election is part of a president’s official duties.
As The New York Times’ Alan Feuer reported, the Supreme Court’s decision “makes it all but certain” that Trump will not stand trial over his effort to throw out the 2020 vote before voters head to the polls in November; if he wins in 2024, the trial will never come. In the meantime, however, U.S. District Judge Tanya Chutkan can do what Roberts asked and schedule time in court where special counsel Jack Smith could lay out his whole case, complete with testimony from witnesses. She could do so as early as September, resulting in “something extraordinary: a mini-trial of sorts unfolding in the nation’s capital in what could be the homestretch of the presidential campaign.”
Whatever Chutkan decides is an “official” act is subject to appeal. The Supreme Court already decided that Trump’s pressure on the Department of Justice to fabricate evidence of “voter fraud” is now a president’s right — and that jurors can’t even be informed of the fact that he did it. That doesn’t mean the case is necessarily dead, altogether.
Just as Trump’s New York convictions pertain to acts that had nothing to do with his presidency (while relying, in part, on evidence of a White House meeting that might now be inadmissible), CNN legal analyst Norm Eisen maintains that Trump can still be held accountable for trying to overturn the last vote against him.
“I think a lot of Jack Smith’s 2020 election interference is also going to be able to continue under this new test,” he said Monday, calling Trump’s celebration “premature.” But that’s only if the case survives voters’ next trip to the ballot box. For now, he told Salon, the lower court judge, herself an appointee of former President Barack Obama who previously rejected Trump’s claims of immunity, ought to immediately schedule that “mini trial,” as the ruling “actually calls for fact-finding by Judge Chutkan.”
It calls for a lot of it, in fact, as no court has previously had to adjudicate whether a president sending a mob after their vice president to block the certification of an election is subject to the Supreme Court’s newly invented “immunity” doctrine. Former federal prosecutor Barbara McQuade said more than half of Trump’s Jan. 6 case likely “remains prosecutable,” but “it will take us a year in litigation to get there.”
That’s provided that the Supreme Court doesn’t step in again to further “clarify” Trump’s immunity, or that Trump doesn’t take office and order the Department of Justice to prosecute those who sought to prosecute him. The best that anyone can do now is tell the voting public what we already know.
“The Supreme Court ruled that evidence of ‘official acts’ cannot be admitted at a trial on the ‘unofficial acts,’” noted former New York state assistant attorney general Tristan Snell, who helped take down the fraudulent “Trump University.” But that ruling does not bar prosecutors from bringing up all that they’ve uncovered “in the proceeding to determine whether the acts were official,” he observed. “All the evidence is about to come out.”
Evidentiary hearings won’t be justice, which will be sufficiently delayed as to be all but denied thanks to six right-wing justice, half of them appointed by the criminal defendant. But at least we’ll have this: No one, be they Samuel Alito or a swing voter in Wisconsin, will be able to honestly claim that they didn’t know what they were voting for and all that’s at stake in November.
