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(Photo by Ali Shaker/VOA)
Richard Nixon once said that if the president does it, it’s not a crime. The Supreme Court didn’t shield Nixon back then, but Richard Nixon didn’t have anyone around to buy Lewis Powell a shiny new RV. Rookie mistake.
Yesterday, the Supreme Court decided to take up Donald Trump’s claim that former presidents cannot be prosecuted for crimes committed while in office unless impeached AND convicted of that specific crime by Senate. Argument is set for April 22 — two months from now — and the criminal trial is paused until the Court ultimately rules, strongly increasing the probability that Trump’s federal criminal fate is pushed past the election.
The Supreme Court is unlikely to rule in Trump’s favor, of course. Discovering an absolute presidential immunity ensconced within the penumbra of Article II seems like a stretch even for the most reactionary members of the Court. Though these arguments have never been more than a delay tactic to push his various trials past the election so Trump can — he hopes — retake the presidency and shut down the DOJ. On that front, whatever assemblage of conservative justices who blessed this delay have granted Trump the victory he sought.
But if Trump loses in November… none of this really matters. And it feels like the Court just gave Trump the Pyrrhic victory that he and his supporters lack the classical education to understand.
The justices who granted cert definitely want to help Trump win that election. As The Nation’s Elie Mystal points out, Alito and Thomas don’t want to Ginsburg themselves by rolling into another four years of Joe Biden being able to pick their successors if they die while vacationing at a billionaire’s resort. They can’t grant him immunity but they can drag this out with a mummer’s farce of disingenuous hand-wringing over the “oh so complicated” constitutional question of whether a president can legally assassinate a general election opponent — an actual argument that Trump’s team endorsed.
Imagining these will be my favorite parlor game for the next month and a half or so.
However, does this move actually help Trump win in November? Democratic politicians are already spinning the Supreme Court’s decision to take up the case at all transforming the race into a referendum on the rule of law in the Donald Trump era. Joe Biden hasn’t whipped up a lot of enthusiasm for his reelection, but nothing focuses the mind quite like watching the other candidate explicitly make pro-political assassination arguments on a national stage.
But the biggest losers in this war might be the conservative justices themselves. Since taking over the institution, the right-wing justices have bristled at the attention they’ve received. Justice Barrett whines about how much better it was when the Supreme Court could ruin people’s lives in obscurity. Sam Alito raged at the notion that ethicists noticed that he was having lawyers write fawning puff pieces about him while they had business before the Court. John Roberts will literally talk about the history of typewriters rather than acknowledge the Supreme Court’s substantive work. And Clarence Thomas is incensed that anyone might want to know that he’s collecting hundreds of thousands from interested parties. A couple years back, Dahlia Lithwick and Mark Joseph Stern wrote a piece about the paradoxical situation of conservative justices getting angrier just as they get everything they ever wanted. Stern hypothesized at the time:
My theory of the case is essentially that they watched for decades while the court was center-right or moderate, or occasionally handed down liberal rulings, and the country largely accepted those decisions. The legal establishment accepted them. There was not a call generally to expand the court, and the court’s approval ratings remained high. I think Alito and Thomas feel like they’ve now won fair and square, they’re in the driver’s seat, they’re issuing all of the decisions that they think are right, that they believe are certainly no more radical than same-sex marriage or abortion, and suddenly their approval rating is plummeting.
For a group so outraged that the country has turned its ire upon them, taking up an absurdist immunity claim will only supercharge public cynicism. Alito and Thomas want the country to think there’s principle behind their decisions, but they’ve staked the credibility of the institution on a claim that can only be read as mendacious partisan gamesplaying.
They likely think that the Supreme Court’s procedural machinations will fly under the radar and they can lend Trump a hand without finding themselves plastered on every headline and at the center of the campaign itself. But that cloistered world no longer exists.
They could have walked away from the controversy. Postured themselves as devoutly conservative but aloof to petty political hackery. Used this move to drape future decisions in a thin air of legitimacy.
In the end, they couldn’t help themselves.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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