Sunday, March 3, 2024 | 2 a.m.
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We don’t yet know why the United States Supreme Court decided this week to take up the question of presidential immunity. Its motives are unclear.
What is clear is that the Roberts court is not filled with the kind of people who should have the fate of American democracy in their hands. Their inability to behave in a manner that is consistent with the highest standards of ethics and transparency, as well as their unwillingness to act with haste on urgent matters of profound national importance, point to a level of political intrigue and meddling that should be deeply concerning to all Americans.
In January, at oral arguments before a three-judge panel of the D.C. Circuit Court of Appeals, former President Donald Trump’s legal team made a truly terrifying argument in favor of absolute presidential immunity. They claimed that even if a president abused the power of the office and ordered the assassination of their political rivals, only the impeachment and removal from office — both of which are clearly political rather than legal acts — could break the immunity enjoyed by a sitting president.
Fortunately, neither a federal district court judge nor a three-judge panel representing the D.C. Circuit Court of Appeals bought into it. In a scathing and unanimous 57-page opinion, the D.C. Circuit stated unequivocally that, “We cannot accept that the office of the presidency places its former occupants above the law for all time thereafter.” The panel went on to say that, “Former President Trump lacked any lawful discretionary authority to defy federal criminal law, and he is answerable in court for his conduct.”
The ruling not only makes common sense and upholds important constitutional values, but it also aligns with the historic understanding of the limits of presidential immunity, such as when President Gerald Ford pardoned Richard Nixon for fear Nixon would be prosecuted for crimes committed while in the Oval Office.
Throughout our history, it has been simply assumed that no person is above the law. That’s a bedrock of our democracy: It’s why we threw off a monarchy. It took someone as despicable as Trump to so thoroughly debase the presidency that we are forced to even have this discussion.
Given the clear and comprehensive ruling of the D.C. Circuit Court, the Supreme Court could have simply let the lower court’s ruling stand and refused to hear the appeal. After all, federal prosecutors originally invited the U.S. Supreme Court to weigh in on the question of presidential immunity back in December 2023. The court refused that invitation at the time but has now suddenly, and without explanation, decided it wants to weigh in.
Moreover, it took the justices more than two weeks to decide to take up the case, a delay that might be acceptable under other circumstances, but which is concerningly long given that there is a clear interest in reaching a final verdict in the Jan. 6 case before the November general election.
If all of that weren’t enough, when deciding to hear the case last week, the Supremes also set oral arguments for mid-April, shortening the timeline to Election Day by at least another seven weeks.
Even in the best-case scenario, the current timeline will not allow Trump’s election interference trial to begin until at least August — less than 100 days from the general election. Pretrial motions over whether his conduct fell within his duties or an order by the Supreme Court for further fact finding by a lower court could delay the trial even further — possibly beyond Election Day.
Under the circumstances, cynics and critics of the high court are not unreasonable in asking whether the conservative majority is engaging in political opportunism and service to a partisan leader. These questions are particularly relevant given the court’s ongoing struggles with multiple members accused of profound ethical shortcomings and the largely unanswered cries for meaningful ethical reform.
The shadow of potential corruption grows even harder to ignore when considering that Justice Clarence Thomas has thus far refused to recuse himself from the case, even though his wife, Ginni Thomas, is a well-known and outspoken Trump operative who was directly involved in the events of Jan. 6 and the spread of the big lie.
But even if the court isn’t engaging in overtly unethical behavior or acting with dubious motives, it is unquestionably failing to rise to the moment. Instead it is bumbling about, leaving a soiled record as one of the worst classes of the U.S. Supreme Court in the past 100 years.
The American people should take note of the court’s failures and of the increasingly disturbing appearance that it is descending into a branch of the national Republican Party.
We should also take note of the Republican Party’s slavish support for Trump, his blatant attempts to ignore the rule of law and the right’s growing support for violent dictators such as Vladimir Putin.
We have the power to short circuit Trump’s plans for authoritarian rule and to restore the court to decency, but only if Trump and his MAGA supporters in the House and Senate are rejected in November.
