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A Jury of 12 Upheld the Rule of the Law. Don't Hold Your Breath for the Right-Wing Supreme Court
So many thanks to the dozen anonymous everyday people in New York who courageously did what the nation's highest court likely will not.
Jun 05, 2024
Last Thursday, 12 ordinary citizens unanimously convicted Donald Trump of 34 felonies. As many have commented, in doing so they upheld the rule of law—the fundamental principle that no person is above the law and that even a former president may be convicted for violating it.
Later this month, however, the six right-wing Justices on the U.S. Supreme Court may issue a decision in U.S. v Trump that would significantly undermine the rule of law, finding that presidents are either wholly or partially immune from federal prosecution (although it would not overturn the New York State conviction.)
SCOTUS has already slow walked its decision for so long that even if it decides that Trump is not immune from prosecution for inciting the January 6 insurrection, it will probably be too late to try him before the November 2024 election.
In late 2023, trial court Judge Tanya Chutkin denied Trump’s motion to dismiss the charges on Trump’s claim that he’s immune from prosecution. She set a trial date for March 4, 2024. Last December, Special Prosecutor Jack Smith asked SCOTUS to review that decision without waiting for a D.C. Circuit Appeal Court ruling but SCOTUS refused. On February 6, the D.C. Circuit unanimously rejected Trump’s claim and ruled that the trial could move forward unless SCOTUS intervened.
SCOTUS did intervene on February 28, postponing the trial indefinitely and agreeing to decide whether and, if so, to what extent a former president enjoys presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office. SCOTUS set oral arguments for nearly two months later on April 24, the very last day of the term to hear oral arguments, virtually ensuring that there would be no decision until late June or early July, effectively giving Trump the delay that he most wanted.
The right-wing Justices hardly asked questions about text or original meaning. Instead, they behaved like they were delegates to a Constitutional convention debating whether or not a President should have some degree of immunity...
The right-wing SCOTUS majority claims to decide cases based on “originalism” or “textualism,” the theory that cases should be decided based on the text of the Constitution as generally understood at the time it was written. But in oral arguments, the right-wing Justices had little to say about text or original meaning. There is no text in the Constitution that mentions or implies presidential immunity from criminal conduct and there’s nothing in the debate about drafting the Constitution that implies that the founders intended to grant king-like immunity to the president. Quite the opposite. The entire purpose and structure of the Constitution is to protect against anyone having power like England's King George III.
So the right-wing Justices hardly asked questions about text or original meaning. Instead, they behaved like they were delegates to a Constitutional convention debating whether or not a President should have some degree of immunity—whether for official or unofficial acts—as a matter of pure policy as if they were writing a new Constitution from scratch.
Justice Samuel Alito (he of the two pro-coup flags over his house) argued “[I]f an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?” And where does it say this in the text or original meaning of the Constitution?
Gorsuch claimed that “I’m not concerned about this case so much as future ones.” Kavanaugh agreed stating “…like Justice Gorsuch, I’m not focused on the here and now of this case. I’m very concerned about the future.” This is in complete violation of the text of Article III of the Constitution which limits the power of Federal Courts to reviewing actual “cases and controversies” and bars them from issuing advisory opinions which merely advise on the constitutionality or interpretation of a law.
Apparently the right-wing “Justices” only believe in textualism and originalism when these theories can arguably support their policy views. They’re prepared to toss them out when they don’t back up their political views such as Trump should be immune from prosecution for breaking criminal laws by inciting an insurrection.
It’s possible that SCOTUS will forge a “compromise” opinion that Presidents cannot be prosecuted for “official” acts (like ordering Seal Team 6 to assassinate a political opponent) but only for “unofficial” acts and send the case back to the lower court to determine whether Trump’s insurrectionary acts were “official” or “unofficial.” This will accomplish Trump’s goal of delaying a trial until after the election, if ever.
So many thanks to the 12 anonymous jurors in New York who courageously upheld the rule of law. But be ready for the U.S. Supreme Court to undermine the rule of law and effectively declare that the president of the United States is a king.
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A Fascist Donald Trump and the Lawyer's Dilemma
Trump’s assault on democracy’s essential institutions has always been open and notorious. Examples abound—and they are laced with lies. If you were an attorney committed to defending democracy, could you defend this man?
Jun 04, 2024
“Thus was democracy finally interred…. [I]t was all done quite legally, though accompanied by terror. Parliament turned over its constitutional authority to [the dictator] and thereby committed suicide, though its body lingered on in an embalmed state to the very end…, serving as a sounding board for some of [the dictator’s] thunderous pronunciations, its members hand-picked by the [dictator’s party], for there were no more real elections….” —William L. Shirer, The Rise and Fall of the Third Reich (1959)
In his book, Shirer then quoted historian Alan Bullock, whose observation decades ago frames the lawyer’s dilemma in representing Donald Trump today:
“‘The street gangs… had seized control of the resources of a great modern State, the gutter had come to power….’ But —as Hitler never ceased to boast—‘legally,’—by an overwhelming vote of Parliament. The Germans had no one to blame but themselves.”
The Constitutional Right to Representation
In the United States, anyone charged with a crime is entitled to a defense. But representing someone seeking to undermine the U.S. Constitution by destroying its institutional foundations and the rule of law is an entirely different matter. That’s because every lawyer swears an oath to support the Constitution.
Trump’s assault on democracy’s essential institutions has always been open and notorious. Examples abound—and they are laced with lies.
The Big Lie(s)
More than 60 federal and state courts ruled that Trump lost the 2020 election. But Trump claims falsely that he won. Yielding no ground to facts or reality, he and his allies claim that—unless he wins—every election is “rigged” against him and no one should credit the outcome, including the upcoming contest on November 5, 2024.
Likewise, a jury of Trump’s peers convicted him of 34 felonies. But Trump asserts that the entire civil and criminal justice system is out to get him. As for January 6, he labels the convicted insurrectionists who attacked the U.S. Capitol “patriots” and “martyrs,” and promises to pardon them if he recaptures the White House.
Trump’s congressional sycophants have fallen in line behind him in adopting his false, revisionist history of the insurrection and his assault on the criminal justice system. But as the attack on the U.S. Capitol occurred, Republicans in Congress—including then-Majority Leader Mitch McConnell (R-Ky.)—were clear about what was happening and who was responsible. A week after the riot, McConnell went to the Senate floor and said, “The mob was fed lies. They were provoked by the president and other powerful people.”
After voting to acquit Trump in his second impeachment, McConnell said:
There's no question, none, that President Trump is practically and morally responsible for provoking the events of the day…
The people who stormed this building believed they were acting on the wishes and instructions of their president, and having that belief was a foreseeable consequence of the growing crescendo of false statements, conspiracy theories and reckless hyperbole which the defeated president kept shouting into the largest megaphone on planet Earth.
He did not do his job. He didn't take steps so federal law could be faithfully executed and order restored.
No. Instead, according to public reports, he watched television happily—happily—as the chaos unfolded. Even after it was clear to any reasonable observer that Vice President Pence was in serious danger.
Today McConnell supports Trump’s re-election bid.
History Might Not Repeat Itself, But Sometimes It Rhymes
Trump has followed the lead of his most heinous predecessor.
Trump peppers his rants with bigotry, fear, and terror. He refers to immigrants as “vermin” who are “poisoning the blood” of the United States. He says, falsely, that they are criminals from “prisons,” “mental institutions,” and “insane asylums.” Trump warns Americans to resist immigration or “you won’t have a country anymore.”
In Mein Kampf, Hitler wrote that he “was repelled by the conglomeration of races…repelled by this whole mixture of Czechs, Poles, Hungarians, Ruthenians, Serbs, and Croats, and everywhere the eternal mushroom of humanity – Jews and more Jews… [His] hatred grew for the foreign mixture of peoples….” (Shirer, p. 27) And he spoke repeatedly about the need to “increase and preserve the species and the race.” (Shirer, p. 86)
Pledging that, if elected, he will be “dictator for a day,” Trump has vowed publicly to “root out” his political opponents. And he promises to stack the federal government with cronies who will never disagree with him.
Hitler said repeatedly that he would “know neither rest nor peace until the November criminals [who, he falsely claimed, had ‘stabbed Germany in the back’ with the onerous Versailles Treaty of 1918] had been overthrown.” He banished or executed those who crossed him. (Schirer, p. 70)
During his first term in office, Trump stacked his administration and the courts with allies, including a federal judge in Florida who presides—and delays—one of the three remaining criminal cases against him. That judge—and many of his other appointees—were and are manifestly unqualified for their jobs.
Hitler co-opted the judiciary and then established his own special courts. He alone became the law. (Shirer, 268-274)
The Washington Post reported in February 2024:
Just before the former president lost the 2020 election to President Biden, Trump issued an executive order designed to gut civil service job protections for workers across the government. It would have paved the way for the workers to be replaced with others, including political partisans, subject to termination at will—a move the Republican president backed because he felt nonpartisan bureaucrats were hampering many of his policies. Trump has promised to reinstate the directive, which Biden quickly revoked after his inauguration. It created a new federal employment category, Schedule F, that would make federal jobs vulnerable to partisan political whims by weakening guardrails meant to ensure a nonpartisan bureaucracy.
Initial estimates that Trump’s edict would apply to more than 50,000 government employees were far too low.
Hitler populated the government with his lackeys. Before becoming chancellor, he vowed that “when the National Socialist movement is victorious in this struggle, then there will be a National Socialist Court of Justice too. Then the November 1918 revolution will be avenged and heads will roll!” (Shirer, p. 141)
Trump understands the importance of symbols and branding. “MAGA” and related paraphernalia—hats, T-shirts, flags—are no accident.
Hitler likewise understood the power of symbols and used the swastika as a unifying image.
Trump co-opted religious evangelicals, many of whom view him as the divine messenger for their cause.
Hitler exploited his country’s history to gain the support of its religious institutions. Then he assumed control over all of them.
Trump has persuaded many industrial magnates to support him because his policies will favor them economically, including a promise to reverse climate initiatives affecting the major oil companies in return for $1 billion in contributions to his current campaign.
Hitler cultivated industry leaders who supported his rise to power – until it was too late to stop his heinous acts that disserved even them.
Trump understands the power of lies, deception, and disinformation. He rode to the White House on the wings of his “birther” lie about President Barack Obama’s origins.
Hitler rode lies to power too: “[A]t a given sign it unleashes a veritable barrage of lies and slanders against whatever adversary seems most dangerous, until the nerves of the attacked persons break down… This is a tactic based on precise calculation of all human weaknesses, and its result will lead to success with almost mathematical certainty…” (Shirer p. 22-23)
Trump understands the power of fomenting fear and encouraging terror. January 6, 2021 made that abundantly clear.
One hundred years earlier, Hitler had discovered that power, writing: “I achieved an equal understanding of the importance of physical terror toward the individual and the masses… For while in the ranks of their supporters the victory achieved seems a triumph of the justice of their own cause, the defeated adversary in most cases despairs of the success of any further resistance.”
Trump has never won a majority of the popular vote for President.
Hitler topped out at 37 percent before an aging President Paul von Hindenburg gave him the chancellorship.
Trump uses television and social media to outline his views and to reveal—in advance—how he will proceed if he gains control of the government.
Hitler used Mein Kampf as a roadmap of his ambitions and his plans to fulfil them. Trump meets all of the criteria that one of Hitler’s professors listed in describing the future dictator: lacking “self-control and, to say the least, he was considered argumentative, autocratic, self-opinionated, and bad-tempered, and unable to submit to school discipline.”
The Lawyer’s Dilemma
So Adolf Hitler seeks your help in dismantling the foundational institutions of government and undermining popular support for democracy.
He offers you a big retainer and dangles the promise of a media spotlight for his outrageous positions.
Your assignment is simple: Do whatever it takes to help him achieve power—but all of the steps must be lawful. His objective—and yours if you accept—is the destruction of the U.S. Constitution and the demise of the rule of law.
Do you take the case?
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Supreme Court's Trump Ruling Reveals a Deep Weakness in Our Constitutional Democracy
The 9-0 ruling by the Court has empowered MAGA Republicans to continue the lie that their assaults on democracy are done in the name of “election integrity” when we know full well the opposite is true.
Mar 08, 2024
“I just want to find 11,780 votes, which is one more than we have . . . So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break.” –President Donald Trump, speaking by phone to Georgia Secretary of State Brad Raffensperger on Saturday, January 2, 2021.
“I think that the question that you have to confront is why a single state should decide who gets to be President of the United States.” – U.S. Supreme Court Justice Elana Kagan to attorney Jason Murray on Thursday, February 8, 2024.
The Supreme Court has now done what pretty much every commentator expected it to do, overturning the Colorado state Supreme Court, and ruling that Donald Trump cannot lawfully be removed by state officials from the ballot of Colorado or any other state.
The ruling, decided by a 9-0 vote, was unanimous. The core rationale for the decision was simple: the Fourteenth Amendment was intended to codify principles of national citizenship over and above “state’s rights” claims advanced by the defeated Confederacy, and to leave it to individual states to enforce the Amendment’s Section III would undermine the very idea of national citizenship.
While I am no expert in constitutional law, there are failures of reasoning in the decision that are apparent even to me...
As the decision states, such a confusing “patchwork,” would “sever the direct link that the Framers found so critical between the National government and the people of the United States as a whole” (p. 12). Separate concurring opinions, by Amy Comey Barrett and by Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, took issue with the ruling decision’s claim that according to Section 5 of the Amendment, only an act of Congress could enforce Section 3 by removing one or more individuals from a ballot. But all nine Justices agreed that, however Section III might theoretically be enforced, it was neither “self-enforcing” in general nor enforceable by individual state decisions. And so Trump must be on the ballot.
As with all SCOTUS decisions, we can expect many experts in constitutional law and U.S. history to take issue with the reasoning behind this case. At the very least, it must be noted that a substantial number of amicus curiae briefs were submitted in support of Trump’s removal, including briefs from major conservative experts, such as retired U.S. Judge J. Michael Luttig, one of many conservatives who actually spearheaded the effort to disqualify Trump from seeking office. The SCOTUS decision apparently thought little of the many powerful arguments advanced in these briefs.
While I am no expert in constitutional law, there are failures of reasoning in the decision that are apparent even to me (if the Amendment is considered to be so scrupulous about disqualification, why does Section 3 explicitly outline the provisions for removing the disability without being equally explicit about the provisions for instating it?). But there surely are “arguments” on either side of this matter, and it was obvious that this Court would never rule against Trump’s “right” to be on the ballot. The real question, always, was how it would explain its decision, and how much dissent the decision would engender. And for me, the most disappointing aspect of the decision was not that a strong conservative majority would support Trump, but that the three liberal Justices would not simply concur, but would squander the opportunity to expose the hypocrisy of Trump’s appeal and, even more important, the underlying frailties of the constitutional system that continue to empower Trump’s assaults on liberal democracy.
That this opportunity would be squandered was clear as soon as Elena Kagan spoke the words in oral argument that are quoted at the very top, words that might well have been spoken for all nine members of the Court, for they are at the heart of the unanimous decision.
Why should a single state decide?
This is an excellent question. But Kagan failed to seriously consider it, by failing to ask a number of essential follow-up questions of the Trump legal team, and then to incorporate these matters into a strong opinion, whether in concurrence or dissent, that called out Trumpism for its attempts to prey on Constitutional weaknesses.
Question 1: Why did Donald Trump work so hard, from November 3, 2020 until January 6, 2021, to pressure one guy—the Secretary of State of a single state, Georgia–to “find” a few thousand votes, in order to claim victory in an election that he lost by seven million popular votes? And why did he exert similar pressure on state officials in a few other “swing states”—Arizona, Wisconsin, Pennsylvania—in the hope of claiming victory by winning the winner-take-all elections in those individual states?
Question 1a: After so relentlessly attempting to change the outcome in a few states, is it not the height of hypocrisy and cynicism for Donald Trump to now argue that no single state, or handful of states, should by right determine a presidential election—especially since this very scenario played out in both George W. Bush’s 2000 victory and Trump’s 2016 victory, both of which hinged on narrow vote margins in a few states and not on winning the national popular vote? Only now this is a problem? Really?
Question 1b: Beyond hypocrisy, back in October 2020, Barton Gellman published a brilliantly prescient piece in The Atlantic entitled “The Election That Could Break America.” This is what he warned:
Close students of election law and procedure are warning that conditions are ripe for a constitutional crisis that would leave the nation without an authoritative result. We have no fail-safe against that calamity. Thus the blinking red lights.
. . . The worst case . . . is not that Trump rejects the election outcome. The worst case is that he uses his power to prevent a decisive outcome against him. If Trump sheds all restraint, and if his Republican allies play the parts he assigns them, he could obstruct the emergence of a legally unambiguous victory for Biden in the Electoral College and then in Congress. He could prevent the formation of consensus about whether there is any outcome at all. He could seize on that uncertainty to hold on to power.
Trump’s state and national legal teams are already laying the groundwork for postelection maneuvers that would circumvent the results of the vote count in battleground states. Ambiguities in the Constitution and logic bombs in the Electoral Count Act make it possible to extend the dispute all the way to Inauguration Day, which would bring the nation to a precipice. The Twentieth Amendment is crystal clear that the president’s term in office “shall end” at noon on January 20, but two men could show up to be sworn in. One of them would arrive with all the tools and power of the presidency already in hand . . . “
Is this not exactly what happened, as documented extensively by the House January 6 Committee, and as determined by the factual ruling of the Colorado Supreme Court? And does this not demonstrate that Trump was intent on exploiting precisely the absence of a national popular vote? And doesn’t this deserve attention at every available opportunity?
Question 2: It is claimed that if a state such as Colorado, or Maine, were to remove Donald Trump from their ballot on Section 3 grounds, this would create a confusing “patchwork,” and would “sever the direct link that the Framers found so critical between the National government and the people of the United States as a whole.” But is not our entire constitutional system a confusing patchwork that severs the direct link between the citizens of the United States and the national government of the United States?
Is this not the very function of the United States Senate, in which Wyoming’s 581,000 citizens have the same national representation as California’s 39 million citizens?
Is not our entire constitutional system a confusing patchwork that severs the direct link between the citizens of the United States and the national government of the United States?
Is this not the very function of the Electoral College itself, which very deliberately elevates the importance of a small group of electors selected in each of the 50 states, and explicitly rejects the principle that a national popular vote should determine who is the President of the United States?
Is this not the very system of election administration established by Article I of the U.S. Constitution, whose Section 4 clearly states: “the times, places, and manner of holding elections, for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by Law make or alter such regulations, except as to the places of chusing Senators?”
Question 3: If both the principle of national citizenship, and “the direct link that the Framers found so critical between the National government and the people of the United States as a whole,” are so important, then why has the Republican Party for decades pursued a deliberate policy of using its control of statehouses to limit the voting rights of large numbers of citizens, by purging rolls, instating challenging voter identification requirements, limiting early or Sunday voting, and using local control of election administration to limit the number of polling places and their hours of operation?
And when the Democrat-controlled House of Representatives in 2021 decisively passed two major pieces of national legislation designed to further nationalize aspects of election administration and voting rights enforcement in order to codify the principle of citizen equality—H.R.1, the For the People Act, and H.R. 4, the John Lewis Voting Rights Advancement Act—why did Republicans work feverishly to demonize, oppose, and obstruct the passage of the legislation, stalling both bills in the Senate and effectively killing them? Senate Republican leader Mitch McConnell went so far as to denounce such legislation on the Senate Floor as “Democrat power-grabbing,” insisting that voting rights enforcement “is not a federal issue” and ought to be left to the states?
Why should states decide how to establish and administer the electoral rules that govern all elections in their state, including federal elections?
Because the Constitution prescribes this, and Republicans have opposed any legislative effort to change it.
What will become of national citizenship if a “patchwork” of state and local rules mediates, limits, and severs the link between American citizens and the U.S. government?
A very good question indeed. But its answer is staring us in the face: democratic citizenship will be eviscerated, and the enemies of constitutional democracy will seize the opportunity to claim electoral victories they did not win, and if successful pursue further means of weaking constitutional democracy.
Here’s another question: what would have happened if the three liberal Justices on the Supreme Court, whatever they thought about the wisdom of the Colorado decision, had taken the full measure of the hypocrisy behind all of those Republicans—on the Trump legal team, in the Congress, and on the Court itself—who have long upheld the “patchwork” system of anti-majoritarian processes that adulterate and diminish meaningful democratic decision-making, but who have now decided, when it suits them, to shed crocodile tears for the integrity of “the American people as a whole” and the right of “the voters” to decide elections?
We will never know.
It is sometimes argued that a great virtue of the Supreme Court’s judicial review is that the process of delivering opinions–including concurrent and dissenting opinions–promotes and elevates democratic deliberation, by making plain for the broad democratic citizenry the crucial opinions in play in important public controversies.
This might sometimes be true. But it was not true this week.
For this week the Supreme Court chose unanimously, via the logic supplied by Elena Kagan, to both promote a fiction about the Constitution and, in so doing, to empower MAGA Republicans to continue the lie that their assaults on democracy are done in the name of “election integrity” and the return of democratic sovereignty to “the people.”
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