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So many thanks to the dozen anonymous everyday people in New York who courageously did what the nation's highest court likely will not.
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.
"The critical question of Donald Trump's eligibility—given his incitement of insurrection—should be resolved before primary voters cast their ballots," said a watchdog group involved in the legal battle.
After the Colorado Republican Party asked the U.S. Supreme Court to reverse a ruling that removed former President Donald Trump from the state GOP's 2024 primary ballot, the legal team for voters behind the initial case requested a swift decision.
The legal battle was launched in September by the government watchdog Citizens for Responsibility and Ethics in Washington (CREW) and law firms representing six GOP and unaffiliated Colorado voters, who argued that Section 3 of the 14th Amendment to the U.S. Constitution disqualifies Trump from holding office again because he incited the January 6, 2021 insurrection.
The Colorado Supreme Court last week overturned a lower court's decision and threw Trump off the state's primary ballot but also paused its ruling until January 4, to give the nation's highest court—which includes three Trump appointees—time to weigh in. Hoping the high court's right-wing majority will reverse the Colorado decision, the state party on Wednesday asked the justices to review and rule on the case by Super Tuesday, which is March 5, 2024, or if that's not possible, by the end of the current term.
The voters' legal representatives responded on Thursday with their own motion requesting a decision by February 11, explaining that "Colorado votes almost exclusively by mail" and clerks must mail ballots to many residents starting February 12.
One of the voters' attorneys, Sean Grimsley of Olson Grimsley Kawanabe Hinchcliff & Murray, said in a statement that "the ruling issued by the Colorado Supreme Court affirmed our clients' argument: Donald Trump engaged in insurrection after taking an oath to support the Constitution and is consequently disqualified from serving as president and barred from Colorado primary ballots."
"The Colorado Supreme Court's decision was well-rooted in the text and historical context of the 14th Amendment and they correctly applied those principles to the facts of this case," he continued. "The Colorado Republican Party's appeal of our clients' case will address an issue of exceptional national importance—whether, as the Colorado Supreme Court found, a former president, and current candidate for office, who has engaged in insurrection against the Constitution is disqualified from holding office again."
"We have filed a motion asking the United States Supreme Court to expedite their consideration of the Colorado Republican Party's appeal and any subsequent review on the issues so that the important question of Trump's eligibility can be resolved before nearly all primary voters cast their ballots," he added.
As Politico reported Thursday:
The state GOP's petition argues three points: The office of the presidency is not covered by the 14th Amendment, the insurrection clause is not "self-executing"—meaning Congress alone must enforce it, and states cannot make that determination on their own—and that by kicking Trump off the primary ballot, the state Republican Party's First Amendment rights of association have been violated.
The party is represented by the American Center for Law and Justice, a conservative Christian law group. Jay Sekulow, who defended Trump during his first impeachment trial, is the organization's chief counsel.
Colorado is the first state where Trump—the GOP's 2024 front-runner—has been barred from the primary ballot but it's not the only one where voters and advocacy groups, backed by legal scholars across the ideological spectrum, are challenging his eligibility. Free Speech for People (FSFP) is leading similar legal challenges in Michigan and Minnesota.
The Minnesota Supreme Court dismissed the case last month while the Michigan Supreme Court on Wednesday let stand a lower court ruling that the secretary of state lacks the legal authority to remove Trump from the ballot.
"We are disappointed by the Michigan Supreme Court's decision," said FSFP legal director Ron Fein. "The ruling conflicts with longstanding U.S. Supreme Court precedent that makes clear that when political parties use the election machinery of the state to select, via the primary process, their candidates for the general election, they must comply with all constitutional requirements in that process."
"However, the Michigan Supreme Court did not rule out that the question of Donald Trump's disqualification for engaging in insurrection against the U.S. Constitution may be resolved at a later stage," he added. "The decision isn't binding on any court outside Michigan and we continue our current and planned legal actions in other states to enforce Section 3 of the 14th Amendment against Donald Trump."
The owner of Minocqua Brewing Company, Kirk Bangstad, on Thursday filed a complaint with the Wisconsin Elections Commission seeking to remove Trump from the state's primary ballot, citing the 14th Amendment. The WEC refused to hear the complaint.
"It's pivotal that someone at least try in Wisconsin to do this," Bangstad told local reporters, vowing that "If WEC, and they will deny our complaint, we will sue in Dane County."
Meanwhile, in Maine, Democratic Secretary of State Shenna Bellows on Thursday barred Trump from the state's primary ballot.
A new analysis shows Republicans on the Senate Judiciary Committee have received more than $450,000 from the same GOP megadonor who has lavished Justice Clarence Thomas with undisclosed gifts.
The Senate Judiciary Committee on Monday sent a letter asking Harlan Crow—the billionaire GOP megadonor who has secretly showered U.S. Supreme Court Justice Clarence Thomas with hundreds of thousands of dollars in gifts since the mid-1990s—to provide a full accounting of his financial ties to Thomas and any other judges on the high court.
It comes as "no surprise" that none of the panel's nine Republicans signed the letter, Accountable.US declared Tuesday, because they have collectively accepted nearly half a million dollars in campaign cash from Crow since the turn of the century, as a new analysis from the watchdog group shows.
Last month, one day after ProPublica published its bombshell report on Crow's under-the-table funding of near-annual luxury vacations for Thomas—the first of what would become many revelations about the two men's financial relationship—Accountable.US calculated that the current Republican members of the Senate Judiciary Committee received $453,300 from Crow between 2001 and 2022. The group revised that figure up to $457,000 on Tuesday in light of a $3,700 donation Crow made to Sen. John Cornyn (R-Texas) earlier this year.
The following is a list of Crow's total contributions to the nine GOP lawmakers on the panel as well as their affiliated PACs and joint fundraising committees, in descending order:
"There should be bipartisan outrage about the undisclosed gifts and travel billionaire megadonor Harlan Crow has given Justice Thomas," Accountable.US president Kyle Herrig said last month. "Senate Judiciary Republicans should join their Democratic colleagues to act. However, their silence so far may be because they have received hundreds of thousands of dollars from Crow as well."
"The highest court in the land should have the highest ethical standards," he added. "When it doesn't, Congress should exert its oversight authority."
Not only have Republicans on the Senate Judiciary Committee with apparent conflicts of interest refused to join their Democratic colleagues in trying to establish enforceable ethics rules for the Supreme Court, but they have attempted to downplay the seriousness of the court's growing crisis of legitimacy.
Several of the panel's GOP members used last week's hearing on proposed Supreme Court ethics reforms—a hearing Chief Justice John Roberts refused to testify at despite mounting evidence of possible corruption involving Thomas and others, including Roberts himself as well as Justice Neil Gorsuch—as "an opportunity for political grandstanding and performative outrage," Accountable.US noted Tuesday.
\u201cNEW BLOG: The Supreme Court is facing a full-blown legitimacy crisis thanks to the corruption of three of its conservative justices.\n\nWithout reform, public trust in one of our core American institutions will continue to plummet \ud83d\udc47\nhttps://t.co/cygCcY8TsJ\u201d— Accountable.US (@Accountable.US) 1683654643
"Cornyn claimed Congress did not have the authority to regulate the courts due to separation of powers—a claim that was disproven by an expert witness that testified at the hearing," Accountable.US pointed out. "Cruz claimed the hearing was not about judicial ethics, but instead, was an attempt to attack Justice Thomas for having rich friends."
Lee went so far as to say that "when this chapter of American history is written, those who attack Justice Thomas today will be justly dismissed as intolerant bigots."
Meanwhile, Graham, the ranking member, accused the left of trying to "delegitimize the court and cherry-pick examples to make a point." Echoing his right-wing ally, Grassley argued that recent revelations are part of a long-term effort to "cast doubt on certain judges and justices, all because the left is opposed to recent court rulings."
Kennedy, for his part, denounced "attacks on conservative justices" as "targeted" and "exaggerated" and dismissed proposed Supreme Court ethics rules as "unnecessary."
Two days after right-wing senators accused reform advocates of launching what Cruz called a "smear campaign" against Thomas, ProPublica revealed that Crow also paid tens of thousands of dollars for the jurist's grandnephew to attend a pair of elite private schools. This came after earlier exposés about Crow footing the bill for yacht trips, buying and remodeling Thomas' mother's home, and more.
Given the mounting evidence of potential connections between Crow's gifts, which Thomas sought to keep hidden, and Thomas' inclination to rule in ways favorable to his superrich benefactor, calls for the judge to resign or face impeachment are growing.
Not only does Crow have links to numerous right-wing groups involved in Supreme Court cases since Thomas was first confirmed to the bench in 1991, but his own real estate company, Crow Holdings, was directly implicated in a 2021 case before the court.
As The Lever reported last month, Thomas voted to end the Covid-era federal eviction moratorium after Crow Holdings called the lifesaving policy a threat to its "profit margins." Now, as a group of New York City landlords prepares to ask the high court to overturn local rent control laws condemned by Crow Holdings—a move that would endanger rent stabilization efforts nationwide—"there is no indication" Thomas would recuse himself, the outlet noted.
Moreover, as Common Dreams reported last week, an Americans for Tax Fairness analysis of campaign finance data shows that after Thomas provided a deciding vote in the Citizens United v. Federal Election Commission case, the Crow family's average annual campaign contributions soared by 862%, from $163,241 before 2010 to $1.57 million since.
This massive increase, which is partly reflected in Crow's donations to Republicans on the Senate Judiciary Committee, underscores how the 5-4 ruling that effectively legalized unlimited political spending has strengthened the wealthy's ability to shape electoral outcomes, further undermining U.S. democracy.
On Tuesday, The Leverargued that the main goal of Crow and other billionaires who provide gifts and outside money to members of the Supreme Court is not to obtain certain decisions in specific cases, given that the court's right-wing ideologues would likely rule conservatively anyway, but to prevent GOP appointees from becoming more liberal over time—a phenomenon that has occurred in the past.
Alluding to Monday's letter from Senate Judiciary Committee Chair Dick Durbin (D-Ill.), The Washington Post reported that "if Crow ignores the request for information by the committee's May 22 deadline, it's unclear what Durbin's next move would be."
The San Francisco Chronicle reported Tuesday that Sen. Dianne Feinstein (D-Calif.) is returning to Capitol Hill after an illness kept her away from the Senate since February. Feinstein's absence has left Durbin without a majority on the panel, enabling the GOP minority to impede action, but her return would open up options.
In an interview with CNN on Sunday, Durbin did not rule out the possibility of a subpoena, saying that "everything is on the table."
In addition to the implementation of robust ethics rules, progressives have called for other far-reaching changes to disempower the country's "rogue" Supreme Court justices, including expanding the court. Seats have been added seven times throughout U.S. history.
Polling data shows that public approval of the nation's chief judicial body has decreased sharply in the months since its reactionary supermajority eliminated the constitutional right to abortion care, among other harmful and unpopular decisions. According to a survey conducted last month, nearly two-thirds of U.S. adults no longer have confidence in the high court.