Nakedly partisan Supreme Court lets Trump dance above the law

On Wednesday, the Supreme Court decided to hear Donald Trump’s claim that he — or any president — is immune from criminal prosecution.

This guarantees that Trump will enjoy a significant delay before he stands trial for his attempt to overturn the 2020 election. It’s entirely possible that the trial won’t begin until after Election Day on Nov. 5, when Trump is all but assured to face President Joe Biden in an electoral rematch.

This is a miscarriage of justice. Here’s why, and what you should know:

• Trump claims on appeal that he is entitled to presidential immunity for plotting to overturn the 2020 election.
• The high court has validated Trump’s legal strategy of repeated delay to push back any trial date until after it loses electoral relevance.
• The hearing, now set for late April, may result in an opinion issued as late as late summer.
• That opinion could again return the case to the appeals court on a limited question of the Court’s choosing.
• Even assuming Trump’s claim of immunity eventually fails — which is widely expected — the decision won’t be issued in time for the election interference case to go to trial before the presidential election on Nov. 5.

Given that SCOTUS decided Bush v. Gorein a matter of days, deciding the 2000 presidential election in Bush’s favor, the Supreme Court’s delay on Trump’s behalf appears intentional.

When the delay is coupled with the complete lack of legal support for the premise that presidents are above the law — which is antithetical to our national history — the decision appears nakedly partisan.

And it gets worse.

Ethics, ethics, ethics

The deliberate delay on Trump’s behalf comes to us from an already compromised Court.

Justice Clarence Thomas apparently did not recuse himself from the decision despite his wife’s deep involvement with Trump’s attempted election fraud, and his continued involvement reflects the Court’s toothless Code of Conduct, released last November.

The justices adopted the voluntary code after Justices Samuel Alito and Thomas came under fire for accepting lavish trips from litigants before the Court.

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Alito accepted an exclusive, expense-paid, private-charter-plane Alaskan retreat with Paul Singer, a billionaire fossil fuel investor, major GOP donor, and hedge-fund manager with multiple cases pending before the Court.

The exclusive fishing junket was arranged by Leonard Leo, a Federalist Society activist who fights climate science and works to put conservative jurists with similar views on the federal bench.

Shortly thereafter, Alito joined a 5-4 majority to change 100 years of election law, striking the Federal Election Campaign Act's limit on corporate campaign expenditures in Citizens United v. Federal Election Commission, which gave monied special interests and corporate lobbyists outsized influence over national elections.

For Thomas’ part, gifts lavished on him and his crusading wife, Ginni, were also next level: island hopping on staffed super-yachts, pampered vacations worth millions over two decades, bougie boarding school tuition, a refurbished home for mom, disguised provocateur “fees” for Ginni and travel on private aircraft fit for heads of state.

The Thomases have luxuriated in conservative donor Harlan Crow’s extreme wealth for decades, while most federal judges won’t even accept a free lunch. Clarence and Ginni show us how it’s done: not just the lunch, but also the chef, the estate he toils in and a private jet and yacht to get to the secluded island on which it sits.

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Faced with these well-publicized ethical breaches, the Court adopted a Code of Conduct — widely panned and deservedly so. One of the most glaring deficits is its lack of enforcement. Another is the lack of recusal, after Thomas flat out refused to recuse himself from cases involving Trump’s efforts to stay in power.

On-brand, Thomas weighed in on Trump’s immunity claim.

While the federal law on recusal mandates recusal in conflicts like these, SCOTUS’ code merely suggests the justices “should” disqualify themselves — advice Thomas seems to have rejected.

Team Trump continues to lie about American history

Trump continues to insist that the lack of prior, similar cases proves that presidents are immune from criminal prosecution when they break the law.

He argues that “the 234-year unbroken tradition of not prosecuting Presidents for official acts, despite vociferous calls to do so from across the political spectrum, provides powerful evidence” that presidents are immune from prosecution.

As examples, he cites President Ronald Reagan’s involvement in Iran-Contra, President Bill Clinton’s pardon of Marc Rich, President George W. Bush’s claims of “weapons of mass destruction” and President Richard Nixon’s firing of Archibald Cox. None of these situations led to criminal prosecution because none of them were criminal offenses in either deed or intent.

More importantly, all of them were undertaken pursuant to obvious powers of the presidency. In contrast, Trump’s attempt to change the outcome of a federal election to keep himself in power is not a recognized presidential function.

The Constitution gives states responsibility for elections, and reserves a role for Congress, not the president. By Constitutional design, presidents have no role in conducting, investigating or attempting to overturn the results of a federal election.

SCOTUS’s decision appears partisan

Most prosecutors, judges and amici briefs filed on appeal to date find Trump’s criminal immunity claims both preposterous and dangerous.

George Washington warned that a future usurper like Trump would try to obstruct official proceedings, warning future Americans to be on the lookout for “obstructions to the execution of the laws, including group arrangements to counteract the regular deliberation and action of the constituted authorities…”

It’s as if Washington saw Trump’s claims of presidential immunity and his mob attacking the U.S. capitol through a crystal ball.

Too bad the nakedly partisan Supreme Court isn’t on the lookout. In America, it appears that one man is, indeed, above the law.

Sabrina Haake is a columnist and 25 year litigator specializing in 1st and 14th Amendment defense. Her Substack is free.