SCOTUS: Trump’s Guardian Angel

The U.S. Supreme Court, since its infamous 2000 decision in Bush v. Gore, has displayed a distinct and increasing tendency toward political bias. Since then, the Court has handed down a number of decisions which will have a major impact on the outcome of political elections for many years to come. Those decisions include its 2010 decision in Citizens United v. FEC (striking legislation limiting campaign financing), its 2013 decision in Shelby County v. Holder (striking Section 5 of the 1965 Voting Rights Act requiring pre-approval by the DOJ of voting law changes) and its 2019 decision in Rucho v. Common Cause (facilitating partisan gerrymandering). More recently, it has embarked on a campaign to prolong the political life of Donald J. Trump.

In December 2019 Trump was appealing two cases to the Supreme Court seeking to compel the production of his income tax returns. Both of these appeals came at a politically sensitive time for Trump as House Democrats had just voted to impeach him. One of those cases had been initiated by the Manhattan District Attorney who was then investigating whether Trump had failed to report all of his New York State and City income. The second was initiated by the House Ways and Means Committee which was investigating compliance issues involving the federal tax laws.

Much to my surprise, the U.S. Supreme Court agreed to hear Trump’s appeals in both of these cases even though both plaintiffs had an absolute right to the information they were seeking as had been determined by the 2nd Circuit Court of Appeals in the first case and the D.C. Circuit Court of Appeals in the second case. The Court’s decision to hear those appeals effectively meant that Trump’s tax returns would be kept from public view until after the Senate had considered the House’s Articles of Impeachment. Because of the utter lack of merit of Trump’s appeals, the Court’s decision clearly appeared to be a product of political engineering.

A few weeks later, Chief Justice Roberts provided further evidence of his own pro-Trump leaning by presiding over Trump’s impeachment trial in which the Republican majority in the Senate had voted to preclude the submission of all supporting evidence. Although the Constitution does not empower the Chief Justice to overrule the Senate’s evidential ruling, the Chief Justice was certainly under no obligation to serve as the presiding officer in a proceeding which violated basic rules governing judicial proceedings. By continuing to preside over an impeachment trial which had been transformed into a total charade, Roberts lent his personal credibility, as well as that of the entire federal judiciary, to serve the interests of President Trump and the Republican Party.

By the mid-summer of 2020, the Presidential election campaign was entering its final stage. Both Trump and Joe Biden had effectively secured their respective party’s presidential nomination and Trump’s chances of success were growing dim as the Covid pandemic had already taken the lives of roughly 100,000 Americans and was undermining the nation’s economy. By the first week in July, Trump was again facing the harrowing possibility that the tax returns he had been hiding from the public since he had first announced that he was running for President in 2015 would finally be made public following the Court decision regarding the  disclosure of his tax returns.

As previously reported, the Supreme Court again came to Trump’s rescue. With respect to the Manhattan District Attorney’s case, the Court, comforted in the knowledge that the Manhattan DA would be required to keep those returns under wraps until a legal proceeding had actually been commenced, ruled that the tax returns would have to be immediately turned over. As the Court had correctly reasoned, it took almost four years before a trial relating to those returns was finally commenced.

The case brought by the House Ways and Means Committee presented a much more imminent danger as that Committee was free to hold hearings involving Trump’s tax returns immediately upon their receipt. To protect Trump’s re-election prospects against that possibility, the Court ruled that the matter should be remanded to the district court to further explore the ways in which the Committee might utilize those returns, a determination that would again be appealed all the way back up to the Supreme Court. It should be noted that the Act of Congress providing the Committee with access to all federal income tax returns does not impose any limitations on the manner in which the Committee chooses to utilize subpoenaed tax returns. In short, the Court implied that there was a limitation on the Committee’s unfettered right to obtain and utilize those returns, all in an effort to make sure that Trump’s tax returns would remain out of the public’s view until after the 2020 election.

In the case now pending before the Court in which Special Counsel Jack Smith is charging Trump with fomenting the January 6th attack on the Capitol, the Court has again agreed to hear a completely meritless appeal by Donald Trump in an effort to protect him from adverse publicity before yet another presidential election. In this case, Trump had asserted that he is immune from criminal prosecution arising out of any actions taken by him while serving as president. The U.S. Constitution, however, provides no such protection even though at the time the Constitution was adopted a few individual states did provide their public officials with qualified immunity. Indeed, the drafters of the Constitution were quite adamant that no president should be above the law. That was the very motive behind the states’ decision to declare independence from England and its monarch.

Not only had Judge Chutkin rejected Trump’s defense of presidential immunity, her decision was quickly and meticulously affirmed by a panel of judges on the D.C. Circuit Court. It would thus appear that the Supreme Court’s decision on February 28, 2024 to consider Trump’s patently frivolous appeal was yet another example of its willingness to shield Trump from a judicial proceeding that would have revealed that he had acted in an unlawful manner and thereby diminish his chances of winning a second term as the nation’s president.

It’s important to note that not only did the Court agree to hear yet another frivolous appeal by Trump, but it scheduled oral argument for the week of April 22nd (the last week in its current term for hearing appeals) which means that it is unlikely that a decision will be rendered before early July when the Court’s current term concludes. Thus, Judge Chutkin, at the very least, would be hard-pressed to even begin the trial of this matter before the November elections.

The concern that the Court was again acting out of political bias was underscored by its earlier rejection of a request by Special Counsel Smith that the presidential immunity defense be heard on an expedited basis. Had the Court granted that request, the January 6th litigation before Judge Chutkin could have been concluded by late spring, well in advance of the 2024 presidential election. Contemporaneously the Court had agreed to an expedited hearing Trump’s appeal of the Colorado Supreme Court’s decision that the Disqualification Clause in the Fourteenth Amendment precluded him from running for public office. In short, when a failure by the Court to act would harm Trump’s re-election chances it was willing to act in an expeditious manner. By contrast, when expeditious action would have impaired Trump’s re-election efforts, the Court displayed no sense of urgency.

Although these actions closely resemble the manner in which the Court had handled the cases seeking Trump’s tax returns, the oral argument of this matter held on April 25th bespeaks a much greater abuse of the Court’s power. At that argument, four of the Court’s conservative justices seemed wholly indifferent to the absence of any mention in the U.S. Constitution of presidential immunity or that the nation’s founders were adamantly against its leader not being subject to the nation’s laws. These four justices were not even concerned that a principal function of the president is to enforce the nation’s laws. Instead, they were focused almost exclusively on an issue that was not even present in the case before them; namely, the potential need for sitting presidents to be shielded from being criminally prosecuted by their successors after they had left office.

It is absolutely astonishing that any of the Court’s justices would have even perceived a need for a doctrine of presidential immunity when none of the 44 U.S. presidents that preceded Trump had ever been criminally charged after he had left office. Perhaps more astonishing is why the Court’s conservative justices felt that they might be empowered to address that issue. The Constitution empowers the federal courts to resolve cases brought before them, not to devise rules for handling disputes that might arise in the future. That is a role that the Constitutions confers upon the Congress. Nor does the Constitution provide that the courts are to assume that role when the Congress fails to act.

What is equally confounding is that those very justices purport to adhere to the interpretative doctrine of “originalism” which only permits the creation of laws that were actually contemplated by the nation’s founders. Not only did the nation’s founding fathers not contemplate a doctrine of presidential immunity; much to the contrary, they were adamantly opposed to it. Moreover, it was those same justices who in 2022 reversed the 50-year old holding of Roe v. Wade for the simple reason that a “right of privacy” was not specifically contemplated when our nation was founded.

Aside from legal theories, the very notion that our nation would benefit from having a doctrine of presidential immunity seems wholly misguided, particularly one that might encompass all actions taken by a sitting president (not just those coming within his official duties) as advocated by Trump’s attorneys. To be sure, there might be some benefit in immunizing a president against litigation while serving as president. The role of the president is so important and far-reaching that the holder of that office should not be burdened by litigation which is not only time-consuming but also overwhelmingly distracting. Still, that notion should not absolve a former president (like Trump) from illegal actions taken while in office.

The argument advanced by Trump’s attorneys which seemingly appealed to the Court’s conservative justices was that a president who would be subject to criminal action after he had left office might be reticent to act in the best interest of the nation if that action might transgress a legal norm. It’s not that this is an irrational consideration, it’s just that there is a much greater danger that an individual armed with the powers of the president who would be immune to prosecution would be a far greater danger to the nation than a president who was reluctant to act out of fear that he might later be criminally prosecuted. This does not even appear to be a close question especially when you consider that the United States has proceeded for the past 238 years without even being prompted to consider the need for presidential immunity. Underscoring that thought is the fact that President Obama did not choose to prosecute President George W. Bush from starting the War in Iraq (which cost the lives of more than 15,000 American soldiers) on the false premise that Saddam Hussein had developed nuclear weapons.

Trump’s appeal to the Court is also seemingly premised on the notion that he is being unjustly prosecuted for political reasons by the Biden administration. This also is total nonsense. First, many Republican leaders, including then Senate Majority Leader Mitch McConnell and House Speaker Kevin McCarthy, were quick to place Trump as the cause of the January 6th attack on the Capitol and no one has accused them of acting out of political revenge. In addition, a bipartisan House Select Committee undertook an extensive investigation and had unanimously come to the same conclusion.

Equally important, the Department of Justice which had been reluctant to even consider taking action against Trump only began to do so almost two years later and  then only after the House Select Committee had submitted its report which concluded that Trump had engaged in a multi-faceted effort to overturn the results of the 2020 election. In addition, even after the DOJ had been prompted by the Select Committee’s Report to conclude that a criminal proceeding against Trump might be warranted, an independent counsel was appointed to actually consider instituting such an action.

It should also be noted that Trump has raised the same presidential immunity defense in the Mar-a-Lago documents case even though all of his alleged actions in that case took place after he had left office. More importantly, That case was instituted largely because Trump had misled NARA officials regarding his possession of government documents and had failed to respond to a subpoena issued by the DOJ. Even so, the DOJ had refrained from taking action against Trump until a court-ordered search of his personal residence (taken 18 months after he had left office) revealed that he was still in possession of highly sensitive classified government documents.

Although the Court’s conservative justices at the April 25th oral argument seemed intensely interested in fashioning a ruling creating a doctrine of presidential immunity, in the final analysis that may not even happen. That’s because their pursuit of that possibility may turn out only to have been a ruse to convey the impression that they had a legitimate reason for even agreeing to hear Trump’s appeals.