No Man is Above the Law... Well, Except For One

(By American Zen's Mike Flannigan, on loan from Ari)

The writing was already on the wall, writ large with a Sharpie, like some woman's phone number scrawled above the urinal in a truck stop men's room by her aggrieved ex-husband. Just the very fact that the Supreme Court agreed to hear this immunity case was in itself troubling and ominous. And, to the surprise of exactly no one, the SCOTUS did as predicted and slow-walked a ruling on this case until literally the last minute (The Supreme Court session ended yesterday).

    This essentially guaranteed the two federal criminal cases against Trump pertaining to the stolen documents and the attempt to overthrow the 2020 election, will surely not be heard before the  November 5th election. The Supreme Court, or rather, the right wing ideologues infesting it, did their jobs well. The outcome, as we all now know, was that Trump has limited immunity from prosecution from core official acts of the presidency.

     I think we may be forgiven for our cynicism that the court of the Fourth Reich would see things the same way if this was brought, for instance, by the Biden administration. Imagine that scenario: Biden sics a mob on the Capitol, gets people killed, because he won't concede an election loss. Then, two weeks later to the day, he steals hundreds if not thousands of classified documents, refuses to turn them over for a year and a half even under subpoena from the federal government.

    Does any reasonable person think the SCOTUS would've seen this case through an identical, nonpartisan lens?

     Yet, by Kinging a democratically-elected head of state, the SCOTUS has also conferred the same limited immunity from prosecution on the aforementioned President Joe Biden and any future president. When Justice Sotomayor famously asked Trump's lawyers during oral arguments if, under their reasoning, the president would be able to dispatch Seal Team 6 to assassinate his political opponents, they were forced to say, "Yes."

     L'État, c'est moi, indeed.

   One of the sticking points, of course, is that many of the crimes for which Trump has been successfully prosecuted, most notably the hush money case that earned him 34 guilty verdicts, were committed before he was shoehorned into the White House. The same with the Manhattan fraud case brought by AG Letitia James and the E. Jean Carroll rape and defamation civil case. Naturally, Trump thinks this sneaky, under-the-radar limited immunity ruling is grounds to dismiss all cases against him, as well as the overturning of the cases against him already decided.

     The 6-3 decision was, as one could expect, drawn along ideological lines. However, proving what a feckless ideologue Amy Coney Barrett is, she did object to one point even while siding with the other right wingers on the court. In her partial dissent, Barrett wrote (.pdf file), 

    "Sorting private from official conduct sometimes will be difficult — but not always. Take the President’s alleged attempt to organize alternative slates of electors. In my view, that conduct is private and therefore not entitled to protection... The Constitution vests power to appoint Presidential electors in the States. And while Congress has a limited role in that process, see Art. II, §1, cls. 3–4, the President has none. In short, a President has no legal authority — and thus no official capacity — to influence how the States appoint their electors. I see no plausible argument for barring prosecution of that alleged conduct."

      In other words, Trump was guilty of a power grab to which he was not Constitutionally entitled. That means it was not an official act of the Office of the Presidency. Journalist Jonathan Allen paraphrased Barrett further by posting on Twitter, 

     "She takes issue specifically with the idea that protected conduct can't be introduced as evidence at trial of a president. Also says it is hard to see pressuring state legislators - namely AZ House speaker — as an official act."

     All valid concerns, granted. And, it's difficult to see how Trump's shameless theft of official documents, many of them classified as Top Secret, and refusing to return them under subpoena and going through extraordinary, cartoonish lengths to keep those documents hidden from federal investigators and even his own attorney, qualifies as protected presidential acts, especially as Trump was out of office by that time.

     Bottom line, Barrett was uncomfortable with the general ruling but went along with it anyway.

     So, boys and girls, I'll break it down for you:

     Trump "allegedly" committed countless crimes to overturn a free and fair election then openly stole hundreds of boxes of documents from the White House that, according to the Presidential Records Act, should've been immediately turned over to the National Archives and did so two weeks after unleashing a mob of violent psychopaths on the nation's Capitol in a desperate last ditch bid to cling to power and he was given immunity from doing so by six right wing ideologues, half of which were installed on the court by Trump himself.

     Can we say "corruption, boys and girls? But, wait! It's not corruption because now the president has immunity!

     But in the act of giving Trump partial legal body armor, they've also given Joe Biden a loaded gun.

     Several liberal activists are now directly calling on Biden to use the new powers unwittingly given to him by the SCOTUS. They're calling on him to pack the court with four liberal justices (which would require the Amen from the Senate), to sign an Executive Order appointing a special prosecutor to investigate the Supreme Court's corruption, etc.

     All good ideas, ones that would drive MAGA world into a murderous frenzy (we love to own them too). But, of course, he won't do any of those things. Joe Biden is nothing if not a traditionalist, albeit a sometimes misguided one, and the old lawyer in him will be able to see how incredibly dangerous this new Supreme Court ruling is.

     And the president will want none of it.

     And these perilous, uncharted legal waters should, if anything, serve as a cautionary tale of what an unrelieved hellscape Donald Trump will turn this nation into if, God forbid, he's installed back in the Oval Office.