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trump v. united states
SCOTUS Has Enabled Fascism in America; Will the Senate Intervene?
If the majority on the Supreme Court thinks that the leader they have enabled will allow them to regulate his actions, it can only be because of their ignorance of history.
Dec 03, 2024
The Supreme Court in Trump v. United States has enabled Fascism in America.
We can see why if we examine the best book I know about Nazi Germany, Ernst Fraenkel’s The Dual State. Fraenkel was a German-Jewish attorney in Weimar Germany. He continued to practice after the Nazis came to power, emigrating to the United Kingdom in 1938 and to the United States in 1939. In The Dual State, published shortly after he arrived in the United States, Fraenkel characterizes the nature of the Nazi state, showing how Adolf Hitler ruled using prerogative powers. Fraenkel draws an analogy between Hitler’s rule and the king’s use of prerogative powers prior to the English Revolution in the 17th century.
Fraenkel shows, well before the events, how, after the court’s decision, as Sonia Sotomayor stated in her dissent, “the President is now a king above the law,” a king with the ability to act arbitrarily, without fear of sanction, in violation of the constitutional restraints the English Revolution sought to impose on the King in the 17th century, and the restraints that prior to the court’s decision, the U.S. Constitution was understood to impose on the president.
The clearest indication, so far, that Trump intends to rule using prerogative powers is his desire to infringe on the Senate’s authority to confirm or reject his appointments.
In patrimonialism, agents in the state function as “personal servants” of the leader. They are the vehicle for the expansion of the scope of the leader’s power, which is enhanced to control areas previously understood as outside the executive’s purview, including many that were previously legislative or judicial.
Charles I was king within an institutionalized state. He was able to claim that his misuse of prerogative powers, substituting them for actions that fell within the scope of parliamentary powers, was legitimate. When Hitler was named chancellor, he quickly moved from an illegal expansion of his powers to a coup d’état, governing using arbitrary prerogative powers. Like Charles I, he cloaked his usurpations in legal terms, but, in fact, as Fraenkel put it, characterizing the Nazi “constitutional” state, “There are no legal rules governing the political sphere. It is regulated by arbitrary measures (Massnahmen), in which the dominant officials exercise their discretionary prerogatives. Hence the expression ‘Prerogative State’ (Massnahmenstaat),” a patrimonial state.
In Nazi Germany, “Absolute dictatorial power is exercised by the leader and chancellor either personally or through his subordinate authorities. His sole decision determines how this power shall be wielded.” In his attempt to legalize his absolute power, the support given to Hitler by traditional conservative forces, including those within a fundamentally conservative legal order, was crucial. While there were sporadic attempts to curtail Hitler’s prerogative, they failed, because of institutional deficiencies and because of the timidity of those who were in a position to defend the Weimar political and legal order. Likewise, in the USA, where the constitutional-judicial safeguards are stronger, the conservatives within the legal and political order have followed their leader like lemmings walking off a cliff. Now the Supreme Court has enabled future presidents to claim, without fear of sanction, sovereign, patrimonial power, immunity for all “official” actions undertaken as president.
Crucially, the determination of what falls under the prerogative is made by the leader himself. As Fraenkel puts it, “The decisions of the state are free from normative restrictions. The state becomes absolute in the literal sense of the word.” The Nazi state suggested that “politics” was independent of the law, “and that the definition of the boundary lines between the two rests in the hands of the political authorities themselves.” If the majority on the Supreme Court thinks that the leader they have enabled will allow them to regulate his actions, it can only be because of their ignorance of history.
While the leader’s prerogative powers may derive from an emergency, it is often the fascist movement that creates the emergency it claims the power to resolve. In Nazi Germany, Fraenkel tells us, “Normal life is ruled by legal norms. But since martial law has become permanent in Germany, exceptions to the normal law are continually made... Whether the decision in an individual case is made in accordance with the law or with ‘expediency’ is entirely in the hands of those in whom the sovereign power is vested. Their sovereignty consists in the very fact that they determine the permanent emergency...”
“From this follows the principle that the presumption of jurisdiction rests with the Normative State,” he continues. “The jurisdiction over jurisdiction rests with the Prerogative state. The limits of the Prerogative State are not imposed upon it; there is not a single issue in which the Prerogative State cannot claim jurisdiction.”
As Fraenkel contends, “the legal situation of the 17th century has been reincarnated. The tendency defeated in England in the 17th century gradually attained success in [Nazi] Germany” (my italics). Now, with the aid of the Supreme Court, we in the United States are at peril of repeating this history, of witnessing President-elect Donald Trump, or one of his successors, acting with absolute immunity in what he chooses to define as his constitutional authority, and the Supreme Court will find that they have authorized him to do so.
The clearest indication, so far, that Trump intends to rule using prerogative powers is his desire to infringe on the Senate’s authority to confirm or reject his appointments. He wants the Senate to let him make recess appointments without their consent, and he has chosen a set of candidates who are among the most unqualified and dangerous in American history. The question now is whether the Senate will guard its constitutional authority to both vet and reject Trump’s candidates. If they do not do so, they, along with SCOTUS, will chart a path to fascism.
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New Motion Presents Most Detailed Case Yet Against Trump for Insurrection Crimes
"The desperate plan that Trump embarked on to try and overturn the results of a legitimate election was reprehensible, irresponsible, and—the document shows—criminal," said one consumer advocate.
Oct 02, 2024
Jack Smith, the special counsel probing former U.S. President Donald Trump's attempt to subvert the 2020 presidential contest, on Wednesday presented a massive trove of fresh evidence supporting his election interference case against the 2024 Republican nominee.
Smith's sprawling and highly anticipated 165-page motion—which was partly unsealed Wednesday by presiding U.S. District Judge Tanya Chutkan—states that Trump "asserts that he is immune from prosecution for his criminal scheme to overturn the 2020 presidential election because, he claims, it entailed official conduct. Not so."
Trump—who in August 2023 was charged with conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights—contends that his actions were taken in his official capacity as president and not as a private individual.
In July, the U.S. Supreme Court's right-wing justices—including three Trump appointees—ruled that the ex-president is entitled to "absolute immunity" for "official acts" taken while he was in office, raising questions about the future of this case. According to Smith's motion:
Although the defendant was the incumbent president during the charged conspiracies, his scheme was fundamentally a private one. Working with a team of private co-conspirators, the defendant acted as a candidate when he pursued multiple criminal means to disrupt, through fraud and deceit, the government function by which votes are collected and counted—a function in which the defendant, as president, had no official role.
In Trump v. United States... the Supreme Court held that presidents are immune from prosecution for certain official conduct—including the defendant's use of the Justice Department in furtherance of his scheme, as was alleged in the original indictment—and remanded to this court to determine whether the remaining allegations against the defendant are immunized.
The answer to that question is no. This motion provides a comprehensive account of the defendant's private criminal conduct; sets forth the legal framework created by Trump for resolving immunity claims; applies that framework to establish that none of the defendant's charged conduct is immunized because it either was unofficial or any presumptive immunity is rebutted; and requests the relief the government seeks, which is, at bottom, this: that the court determine that the defendant must stand trial for his private crimes as would any other citizen.
Smith's filing details what Trump told various people in his inner circle, including then-Vice President Mike Pence, his now-disgraced and twice-disbarred lawyer Rudy Giuliani, and leading White House and Republican Party figures—some of whose names remain undisclosed.
The motion also highlights Trump's actions on January 6, 2021, when his supporters stormed the U.S. Capitol in an attempt to stop Congress from certifying President Joe Biden's Electoral College victory. Trump is still pushing his "Big Lie" that Democrats stole the 2020 election; his running mate, U.S. Sen. J D Vance (R-Ohio), on Tuesday
refused to acknowledge that Trump lost to Biden when he was asked about the election during a vice presidential debate against Democratic Minnesota Gov. Tim Walz.
"Upon receiving a phone call alerting him that Pence had been taken to a secure location, [PERSON 15] rushed to the dining room to inform [Trump] in hopes that the defendant would take action to ensure Pence's safety," the filing states. "Instead, after [P15] delivered the news, the defendant looked at him and said only, 'So what?'"
Smith argued that deceit was central to Trump's efforts, specifically, "the defendant's and co-conspirators' knowingly false claims of election fraud," which they used to purvey the Big Lie.
The motion states:
When the defendant lost the 2020 presidential election, he resorted to crimes to try to stay in office. With private co-conspirators, the defendant launched a series of increasingly desperate plans to overturn the legitimate election results in seven states that he had lost—Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin (the "targeted states"). His efforts included lying to state officials in order to induce them to ignore true vote counts; manufacturing fraudulent electoral votes in the targeted states; attempting to enlist Pence, in his role as president of the Senate, to obstruct Congress' certification of the election by using the defendant's fraudulent electoral votes; and when all else had failed, on January 6, 2021, directing an angry crowd of supporters to the United States Capitol to obstruct the congressional certification.
For a historic second time, Trump was
impeached by the House of Representatives following his effort to subvert the election, although he was subsequently acquitted by the Senate.
Trump spokesperson Steven Cheung
blasted Smith's motion as "unconstitutional" and "falsehood-ridden."
"Deranged Jack Smith and Washington D.C. Radical Democrats are hell-bent on weaponizing the Justice Department in an attempt to cling to power," Cheung said in a statement aping Trump's habit of overcapitalizing words. "President Trump is dominating, and the Radical Democrats throughout the Deep State are freaking out. This entire case is a partisan, Unconstitutional Witch Hunt that should be dismissed entirely, together with ALL of the remaining Democrat hoaxes."
Democracy defenders, however, welcomed Smith's ruling.
"Jack Smith has shown us yet again the merits of his case against former President Trump," said Lisa Gilbert, co-president of the consumer advocacy group Public Citizen and co-chair of the Not Above the Law Coalition.
"In his filing, Smith clarifies that the alleged criminal actions occurred while Trump was acting as a private citizen," Gilbert added. "The desperate plan that Trump embarked on to try and overturn the results of a legitimate election was reprehensible, irresponsible, and—the document shows—criminal. Accountability to the American people and our democracy is our only path forward."
Judge Chutkan unsealed the motion five weeks before Trump will face off against Democratic Vice President Kamala Harris in a tight presidential election. If he wins, Trump will have the power to order the Department of Justice to drop the criminal charges against him.
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New Revelations Show Just How Corrupt the Supreme Court Really Is
Call me naïve. At the beginning of this year, I felt confident in asserting that the court was a conservative court, a Federalist Society court, even a Republican court—but not a MAGA court.
Sep 18, 2024
Last spring, Justice Samuel Alito had drafted an opinion dropping federal charges against many of the January 6 insurrectionists who violently stormed the Capitol. The ruling in Fischer v. United States had not yet been released. Then The New York Times published a startling story: Alito himself had flown the flag of insurrection at his home. (He briefly blamed it on his wife: “She is fond of flying flags.”) Days later, it was reported that he had flown such flags at his vacation home as well.
Awkward! Grounds for recusal? Time to rethink the ruling? Nah. Instead, Chief Justice John Roberts quietly took Alito’s embarrassing name off the opinion and slipped his own name onto it instead.
That is just one of the gobsmacking revelations from a story by Jodi Kantor and Adam Liptak that appeared in The New York Times last weekend. The lurid news of the day quickly overwhelmed it—the gunman arrested outside Donald Trump’s golf course, the continued smear campaign by former President Trump and Sen. JD Vance (R-Ohio) against the Haitian immigrant community in a small city in Ohio, and more.
Throughout American history, overreach by the Supreme Court has provoked a response.
But we must not let these revelations fade from view. They paint a damning and indelible picture of how John Roberts, for all his vaunted “institutionalism” and piety about calling “balls and strikes,” steered the court to shield Trump from accountability for his misdeeds.
Call me naïve. At the beginning of this year, I thought I had few illusions about the court. I had just published a harshly critical book, The Supermajority. But I felt confident in asserting that the court was a conservative court, a Federalist Society court, even a Republican court—but not a MAGA court. It had not yet shown an appetite for excusing Trump from the reach of the law.
So I, along with most legal observers, assumed that the justices would let Trump’s trial proceed. I thought there was a good chance it would be unanimous, that Roberts would work behind the scenes to ensure that the court spoke with one voice on major issues of presidential power and constitutional law. That’s what other chief justices did, most notably Warren Burger in United States v. Nixon, the Watergate tapes case and the closest analogue to the Trump trial ruling.
After all, we all thought, Trump v. United States was legally easy. Indeed, the possibility of criminal charges was the stated reason why Republican senators did not vote to convict him of the January 6 charges in Trump’s second impeachment trial.
Many of us, too, sensed there was a deal afoot—a unanimous ruling that Trump could not be thrown off the ballot by one state under the 14th Amendment and a principled ruling on the criminal trial.
Behind the velvet curtain of the court, though, there was no deal. Roberts wrote a memo in February—before the court had even announced that it would hear Trump’s appeal—declaring that the court would give the former president a huge win. “I think it likely that we will view the separation of powers analysis differently” from the appeals court, he wrote. As Kantor and Liptak summarized, “In other words: grant Mr. Trump greater protection from prosecution.”
They detailed myriad other ways that Roberts steered rulings Trump’s way. He froze out Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. The ruling was sloppy and immunized vast areas of potential presidential wrongdoing. The Times noted that NYU Law professor Trevor Morrison had discovered that Roberts selectively edited a quote from a key earlier ruling to help Trump.
The resulting ruling tells future presidents that they can break the law, plainly and flagrantly. As long as they conspire with other government officials, it will be effectively immunized. (Order your White House counsel to pay hush money, as Richard Nixon did, not your campaign manager, and you’ll be off the hook.)
The opinion has widely and correctly been scorned as one of the worst in American history—a rip in the constitutional fabric. The Times’ tick-tock makes clear that this was not a baffling anomaly. Rather, it is the biggest, most visible, and perhaps most consequential in a series of actions taken by a corrupted court. It follows Citizens United, Shelby County, and other rulings that systematically undid key democratic protections.
Throughout American history, overreach by the Supreme Court has provoked a response. Dred Scott did in the 1850s—it helped lead to a civil war. Reactionary rulings such as Lochner did in the early 20th century. Trump v. United States should join with the Dobbs abortion rights ruling to spur a similar backlash today.
We’ve argued for an 18-year term limit for Supreme Court justices, because nobody should have too much public power for too long. And we’ve urged a binding code of ethics, which would have forced Justices Alito and Clarence Thomas to step out of these key cases. These reforms are widely popular. Most recently, a Fox News poll this summer found that 78% support term limits.
The court is a broken institution. It’s time to fix it. The latest revelations remind us that otherwise, the fix is in.
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