Bill Blum, The Progressive

Here are 5 truly awful things you may have overlooked about 'Trump v. United States'

As nearly everyone living above ground now knows, the U.S. Supreme Court has granted Donald Trump and future Presidents broad immunity for official acts they commit while in office. The Court’s 6-3 majority opinion in United States v. Trump, written by Chief Justice John Roberts, confers “absolute immunity” on Presidents for exercising their “core Constitutional powers,” such as the authority to confer pardons, and “presumptive immunity” for all other acts within the “outer perimeter” of their official duties.

This article originally appeared on The Progressive.

The ruling will effectively delay Trump’s trial on the indictment brought against him by Justice Department Special Counsel Jack Smith until after the November election. In the longer term, the ruling clears the way for the establishment of an imperial presidency that, despite Roberts’ protestations to the contrary, operates above the law. If American democracy somehow survives, the opinion will go down as one of the most regressive in the Supreme Court’s history, taking its place alongside Dredd Scott, Plessy v. Ferguson, and Bush v. Gore.

But as reckless as the ruling is on its face, it is even more dangerous when its depths are plumbed. Here are five truly awful things you may have overlooked about the case on an initial reading:

1. The opinion doesn’t change the definition of federal crimes, but it gives Presidents a license to commit crimes.

The opinion does not change the definition of any federal offense. Nor does the opinion hold, as Richard Nixon remarked in his infamous 1977 interview with British journalist David Frost, that “when the President does it, that means that it’s not illegal.”

“Crimes are still crimes . . . [a]nd criminals are still criminals,” as Quinta Jurecic and Benjamin Wittes noted in a recent Lawfare article. If Trump is reelected and orders Seal Team Six to assassinate a political rival, for example, he would still be breaking the law. He just could not be prosecuted. The immunity granted by the Supreme Court would provide Trump with legal protection from criminal liability and punishment, but it would not otherwise sanitize his conduct.

2. The pardon power opens the door to criminal conspiracies.

While the majority opinion immunizes Presidents for their official acts, it does not directly protect subordinates who carry out their orders. Nonetheless, Trump’s potential henchmen would not be left out in the cold. The opinion recognizes the pardon power as a core constitutional function that is beyond the scope of judicial review. As a result, future presidents will be able to pardon their accomplices, sparing them from any criminal punishments.

Long before John Roberts penned his majority opinion, Trump was aware of the broad reach of the pardon power. In 2019, he reportedly told Customs and Border Patrol Commissioner Kevin McAleenan that he would pardon him if he were sent to jail for illegally blocking asylum seekers from entering the country. At the time, it was unclear if Trump was joking. Now, courtesy of Roberts and the Supreme Court’s ultra-right majority, the only joke is on the American people, who expect their chief executive to “take care” that the laws of the United States are faithfully executed, as the Constitution commands.

3. The opinion guts the Constitution’s impeachment judgment clause.

Roberts’ majority opinion rejected Trump’s outlandish claim that the indictment brought against him must be dismissed because the Constitution’s “Impeachment Judgment Clause” requires that Presidents be convicted of an impeachable offense in a Senate trial as a precondition to being prosecuted criminally in federal court.

What the opinion doesn’t say, however, is that by granting Presidents absolute immunity for exercising their core constitutional powers, Presidents will be forever shielded from criminal prosecution for official acts, whether for treason, bribery, or “other high crimes and misdemeanors.”

As Justice Sonia Sotomayor noted in a blistering dissent:

“The majority ignores . . . that the Impeachment Judgment Clause cuts against its own position. That Clause presumes the availability of criminal process as a backstop by establishing that an official impeached and convicted by the Senate ‘shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law’ . . . . That Clause clearly contemplates that a former President may be subject to criminal prosecution for the same conduct that resulted (or could have resulted) in an impeachment judgment—including conduct such as ‘Bribery.’”

4. As always, Clarence Thomas pushes the envelope.

Not content with joining Roberts’ majority opinion, Justice Clarence Thomas added a concurrence in which he called on his bench-mates to declare the Department of Justice’s special counsel regulations unconstitutional.

The regulations were put into effect by the DOJ in 1999 to fill a void left by Congress’s decision to allow a federal statute for appointing “independent counsels” to expire. The regulations have been upheld by two federal appellate courts—the D.C. Circuit in 2019 with regard to the appointment of Robert Mueller, and the Third Circuit with regard to the appointment of Robert Hur to investigate Hunter Biden. The Supreme Court, however, has yet to review the regulations.

Thomas’s concurrence is seen by some commentators as an open invitation to Federal District Court Judge Aileen Cannon, who is overseeing the Mar-a-Lago documents case against Trump, to overturn the regulations and set up a test case to come before the Supreme Court. Cannon is currently entertaining a motion from Trump’s legal team to do just that. In the meantime, the case remains stalled with no date set for trial.

5. The opinion exposes originalism as a result-oriented sham.

The reactionary supermajority that controls the Supreme Court has embraced originalism—the view that the Constitution should be understood today as it was understood during the founding era—as an article of faith and practice. Proponents of originalism assert that the doctrine limits the subjectivity of judges and acts as a restraint on judicial activism.

Trump v. United States proves once and for all that originalism is a sham. Nowhere does the text of the Constitution provide for Presidential immunity from criminal prosecution. Nor does a faithful reading of the seminal treatises of the founding era lead to such an outrageous conclusion.

In the Federalist Papers, Alexander Hamilton wrote that Presidents in the newly minted republic would not have unlimited power but could, if need be, be prosecuted in the ordinary course of law. The overriding purpose of the revolution was to free a fledgling democracy from the clutches of absolute monarchy and to enshrine the principle that no one is above the law. To their everlasting shame, John Roberts and his collaborators would have us forget this purpose entirely.

Trump has already won his immunity case

Is Donald Trump immune from criminal prosecution? Any day now, the U.S. Supreme Court is expected to decide that question in the election-subversion case brought by Justice Department Special Counsel Jack Smith.

The court’s decision has the potential to forever alter the power of the presidency. But no matter how the court rules, the sad reality is that Trump has already won.

By delaying its opinion until the waning days of its current term, the Court will prevent the case from going to trial before the November presidential election. Should Trump win, he will be able to order his new Attorney General to dismiss the case altogether. That’s something you can count on as surely as tomorrow’s sunrise.

As many commentators have argued, Trump’s principal legal strategy in the subversion case, as well as in the Mar-a-Lago documents case and the state prosecutions brought in Georgia and New York, has never been about the merits of the legal issues involved. The game plan has always been about delay. And with the sole exception of the New York hush-money prosecution brought by Manhattan District Attorney Alvin Bragg, the strategy has worked to perfection.

In Georgia, Fulton County District Attorney Fani Willis’s case against Trump has been indefinitely postponed while a state appellate court considers whether to disqualify Willis and her office because of a secret romantic affair she had with her top deputy. In the Florida documents case, progress has been stymied by an inexperienced and arguably incompetent judge who appears to be biased in favor of the former President.

But of all the delays, the one in the nation’s highest court is the most unforgivable. On December 1, 2023, federal District Court Judge Tanya Chutkan, who has been assigned to preside over the subversion case in the event it ever goes to trial, rejected Trump’s immunity claim in a blistering 48-page opinion, writing:

“Whatever immunities a sitting President may enjoy, the United States has only one Chief Executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass . . . . [The] defendant’s four-year service as Commander-in-Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.”

Believing that the Supreme Court would eventually take up the immunity question, Smith responded with alacrity. On December 12, he asked the Court to review the immunity issue on an expedited basis and bypass the Court of Appeals in the District of Columbia, which would normally have first crack at reviewing Chutkan’s opinion. His request was quickly denied, causing the first significant delay in the litigation.

The case proceeded to the Court of Appeals, which heard oral arguments on January 9. On February 6, the three-judge panel assigned to the appeal, which included a very conservative Republican jurist first appointed to the bench by Ronald Reagan, voted unanimously to affirm Chutkan’s ruling, holding:

“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”

The Supreme Court wasted little time in accepting Trump’s petition to review the decision of the Court of Appeals, but in a foreshadowing of further delays to come, it scheduled oral arguments for April 25, the last date for arguments in its 2023-2024 term.

When the arguments finally took place, the Court appeared poised to reject the claim of absolute immunity advanced by Trump’s lawyers. The Court’s six Republican Justices, however, seemed ready to provide Trump with a limited but still significant degree of protection for any “official acts” he may have undertaken as President to contest the results of the 2020 election as opposed to those he undertook in his personal capacity as a political candidate.

The Supreme Court addressed the distinction between a President’s official and personal acts in Nixon v. Fitzgerald, a 1982 decision involving a wrongful termination lawsuit brought by a federal contractor against Richard Nixon. Fitzgerald held that Presidents are entitled to “absolute immunity” in civil cases seeking damages arising from their official acts and acts “within the outer perimeter” of their official duties. Trump’s lawyers urged the court to import the Fitzgerald standard to criminal law.

Whether the court’s rightwing majority ultimately agrees to create a Fitzgerald-type test or some other Trump-oriented standard for the subversion case remains to be seen, but the Court’s foot-dragging is inexcusable.

In a recent article in The American Prospect, Northeastern University law professor Michael Meltzer explained that the court normally waits to issue decisions until each Justice has an opportunity to write a concurring or dissenting opinion of their own. But as Meltzer also explained, the Court can act with urgency when it wants to in cases of extraordinary importance.

Meltzer cited three examples of the Court moving swiftly in pivotal appeals. The first he discussed occurred in August 1958, when the Court convened an emergency session in Cooper v. Aaron to review Arkansas Governor Orval Faubus’s refusal to desegregate public schools in defiance of the court’s landmark ruling in Brown v. Board of Education. Although the court officially opens each new term in October, it issued a unanimous decision in Cooper against the state and its governor on September 12.

In 1971, in New York Times Company v. United States (the Pentagon Papers case), the court took four days to issue a decision upholding the First Amendment rights of the Times and The Washington Post to publish a trove of documents on the Vietnam War leaked to the press by Daniel Ellsberg. And in 2000, the Court took just one day after hearing oral arguments to release its opinion in Bush v. Gore, which handed the presidency to George W. Bush.

Earlier this term, the court took less than four weeks from the date of oral arguments to overturn the Colorado Supreme Court’s decision disqualifying Trump from the 2024 ballot under the 14th Amendment’s insurrection clause.

It has now been more than eight weeks—and counting—since the Court heard oral arguments in Smith’s subversion case. There is only one plausible reason for a delay of such length, and it has nothing to do with the technical and procedural mechanics of Justices writing concurrences and dissents. The reason is political.

As much as the Court’s conservative Justices, who now comprise a six-member majority, may protest that they are fair and impartial arbiters of the law, the majority has swung sharply to the right. Three members of the majority—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—were nominated by Trump himself. At least two others—Clarence Thomas and Samuel Alito—are arguably corrupt, having received lavish benefits in the form of free luxury vacations and other benefits from Republican mega-donors. If the majority can’t deliver an opinion that explicitly places Trump above the law, it will do the next best thing for the former President—postpone his day of reckoning until the case against him dies from lack of forward momentum.

Unequal Justice: Clarence Thomas isn't going anywhere

The problem with Justice Clarence Thomas isn’t just that he’s reactionary or morally bankrupt. It’s that he isn’t going anywhere any time soon.

Thomas is in his thirty-first year on the high court, placing him twelfth on the list of longest-serving Supreme Court justices in history. While he will turn seventy-five in June, he appears in reasonably good physical health, and has no intentions of stepping down.

In 1993, Thomas told two of his law clerks that he planned to serve on the court until 2034, and that until then he would do his utmost to make the lives of liberals “miserable.” If his plans hold, Thomas will eventually become the longest-tenured Justice of all time, surpassing William O. Douglas, who stayed on the panel for thirty-six years and 209 days.

Earlier this month, Thomas again made good on his pledge to own the libs—and further erode the stature of the Supreme Court in the process, when he issued a statement denying any wrongdoing in response to a bombshell ProPublica article. The investigation revealed a stunning array of secret gifts that Thomas and his wife Ginni Thomas, the crackpot uber-right election denier, have received from Texas billionaire and Republican mega-donor Harlan Crow over the past twenty years.

Crow is a founder of the conservative nonprofit Club for Growth. He also sits on the board of the American Enterprise Institute, an aggressive rightwing think tank with a long track record of publicizing and promoting amicus briefs in pending Supreme Court cases. The institute’s roster of affiliated scholars over the decades has included the likes of Newt Gingrich, Dinesh D’Souza, and Robert Bork. Crow also reportedly houses a signed copy of Mein Kampf and two paintings by the Führer himself in the art collection that he maintains at his Highland Park mansion in Dallas County, Texas.

On April 6, ProPublica reported that the Thomases took a 2019 trip to Indonesia on Crow’s Bombardier Global 5000 jet, followed by a nine-day island-hopping cruise aboard Crow’s superyacht. ProPublica reporters valued the junket at more than $500,000 dollars, nearly double Thomas’s annual salary of $285,000.

The Indonesia excursion was only one of many trips for which Crow has picked up the check on the Thomases’ behalf. Thomas and his wife regularly take summer vacations at Crow’s rustic resort in the Adirondack Mountains of New York, and have been hosted at Crow’s ranch in East Texas. Crow also paid for Thomas to attend a one-week retreat at the exclusive all-male Bohemian Grove in California. And to top off his beneficence, in 2011, Crow gave half a million dollars to a Tea Party group founded by Ginni Thomas, who received a $120,000 salary from the group.

On April 13,ProPublica updated its reporting to add that in 2014, Crow purchased the two-bedroom home in Savannah, GA, where Thomas’s mother lived, along with two nearby vacant lots, for $133,363. The home was jointly owned by Thomas, his mother, and the family of the Justice’s late brother. Expensive improvements were subsequently made to the property, where a source told ProPublica Thomas’s mother still resides.

Thomas’s rejoinder to the original ProPublica story (he has not as yet replied to the update), was released by the court’s public information office. It is a work of evasion and artifice, reading in full:

Harlan and Kathy Crow are among our dearest friends, and we have been friends for over twenty-five years. As friends do, we have joined them on a number of family trips during the more than quarter century we have known them. Early in my tenure at the Court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable. I have endeavored to follow that counsel throughout my tenure, and have always sought to comply with the disclosure guidelines. These guidelines are now being changed, as the committee of the Judicial Conference responsible for financial disclosure for the entire federal judiciary just this past month announced new guidance. And, it is, of course, my intent to follow this guidance in the future.

That last sentence refers to new guidelines adopted in March by the Judicial Conference of the United States, the administrative arm of the federal courts that modestly tightens the financial disclosures federal judges must make each year for themselves and their spouses under the 1978 Ethics in Government Act (EGA) to safeguard against conflicts of interest.

The new regulations require judges to disclose gifts in excess of $415 from people other than relatives, any complimentary transportation, and any free stays at commercial properties. There is a giant loophole, however, in both the new and old regulations that Thomas has exploited: Free lodging at the personal residences or properties owned by individuals (rather than corporations) is exempt under a “private hospitality exception,” and need not be reported.

The loophole is outrageous, but not as wide as Thomas apparently thinks. Even if he had no obligation to report his sojourns on Crow’s ranch and Adirondack summer playground, Thomas still had a duty to disclose other goodies such as the purchase of his family’s Savannah home, his trip to Bohemian Grove, his numerous rides on Crow’s private jet, and his Indonesian cruise.

“When a Justice’s lifestyle is being subsidized by the rich and famous, it absolutely corrodes public trust,” Virginia Canter, the chief ethics counsel at Citizens for Responsibility and Ethics in Washington (CREW), told ProPublica for its initial article. “Quite frankly, it makes my heart sink.”

Thomas’s official statement is also rife with hypocrisy. In a 2020 documentary film about his life, Created Equal: Clarence Thomas in His Own Words, Thomas can be seen on-screen, quipping, “I prefer seeing the regular parts of the United States. I prefer the RV parks. I prefer the Walmart parking lots to the beaches and things like that. There’s something normal to me about it. I come from regular stock, and I prefer that—I prefer being around that.” The documentary was bankrolled in part by—you guessed it—Harlan Crow.

Like Thomas, Crow has released a statement denying any improprieties in his relationship with the Justice.

The ProPublica revelations are by no means Thomas’s first brush with ethics issues. Scandals and controversy have long dogged Thomas, dating back to his raucous 1991 Senate confirmation hearing, when he was credibly accused of sexual harassment by Anita Hill and other female colleagues while he was the chair of the Equal Employment Opportunity Commission.

In 2011, amid an outcry from Common Cause and other watchdog groups, he was forced to amend thirteen years of disclosures for failing to report his wife Ginni’s income from the Heritage Foundation, Hillsdale College, and other employers. Thomas claimed at the time that he that he had misunderstood his reporting responsibilities, and simply checked the wrong boxes on his disclosure forms, an odd response from a Supreme Court justice, let alone a lawyer.

In 2021 and again in 2022, Thomas arguably crossed ethical lines once more when he failed to recuse himself in cases involving the January 6 insurrection and Donald Trump’s efforts to overturn the results of the 2020 election, despite Ginni’s prominent role as an organizer of the “Stop the Steal” campaign. Thomas’s participation in such cases may have violated the federal recusal statute.

As veteran legal commentator Adam Cohen noted in a recent op-ed in The New York Times, Democrats and Republicans in Congress joined forces fifty-four years ago to demand that Supreme Court Justice Abe Fortas resign as a result of alleged financial improprieties that pale in comparison to those involving Thomas.

Although Thomas is a clear-cut candidate for impeachment or at the very least an investigation by the Senate Judiciary committee, there is no chance today of a similar bipartisan move against Thomas. The Republican Party of 2023 loves Clarence Thomas, and as long as it does, he isn’t going anywhere.