Hey, remember that funny time back in 2020 when Donald Trump’s pals on the Supreme Court threw a year-long wrench in the works before deciding that, yeah, okay, sitting presidents can be investigated for crimes?
This morning, the Supreme Court heard argument in Trump’s effort to get his federal election interference case dismissed on grounds of magical, perpetual presidential immunity. We all know where this ends. Not even this court is going to rule that presidents are wholly above the law. But the question of when that train pulls into the station is critical, since an arrival date in 2025 will allow the defendant to push the carriage off the track and into a steep ravine where it implodes in a great ball of fire, along with the American democratic experiment.
The morning started with Trump’s lawyer D. John Sauer attempting to make chicken salad out of chicken shit. He opened by warning that allowing ex-presidents to be prosecuted for crimes committed in office would result in “de facto blackmail and extortion,” ensuring a chief executive sitting frozen in fear in the Oval Office, terrified that his successor would invent a crime to LOCK HIM UP.
Relatedly, here’s a email sent out by the Trump campaign yesterday.
The justices largely took turns whacking Sauer about like a piñata, with Justice Barrett forcing the lawyer to admit that much of the conduct charged in the indictment was of a purely personal, non-official nature. The lawyer did manage to catch himself when it came to the fraudulent slates of electors Trump got his campaign to gin up, insisting that this was totes part of his official duties. Under questioning by Justice Sotomayor, Sauer channeled Kellyanne Conway, insisting that they were “alternative” electors, not fake! The ass-kicking concluded with Justice Kagan cornering Sauer on the subject of presidential coups and whether they were legal in the absence of impeachment and conviction. Spoiler alert: YUP.
But when Michael Dreeben, the OG Supreme Court advocate, took his turn, things went totally sideways. Justice Alito picked this morning to get in touch with his inner Black Panther, inveighing against dirty prosecutors abusing their office to indict opponents, Fourth Amendment be damned. Wouldn’t it be better, he wondered, to simply let presidents just do all the crimes before leaving office. Wouldn’t the fear of being prosecuted simply encourage coups?
With Alito staking out the absolute craziest possible position, this left his fellow conservatives free to occupy the “middle” ground, i.e. gazing at their navels until July and then pulling out a Lint Test — with more branches than the Comcast customer service phone tree — for the district court to deploy. Chief Justice Roberts, along with Justices Kavanaugh and Gorsuch, appear to favor this “moderate” position, which would remand the case to the trial court for further determination as to which acts were personal and which official, and if so, which implicated a “core” presidential duty. One wonders why they couldn’t have developed this test back in December the first time the Special Counsel asked them to.
Just kidding. No one wonders that.
Kavanaugh and Gorsuch took great pains to say that they needed to devote appropriate time to this weighty issue.
“I’m not thinking about the case before us,” Gorsuch intoned somberly, as if he weren’t doing everything in his considerable power to ensure that “the case before us” drags out until after November. Kavanaugh echoed this sentiment, even as he strongly hinted that the special counsel’s appointment was itself unconstitutional. It’s a bold move from a guy who got his start writing the Starr Report and harassing a sitting president for a picture of his penis. But if Alito can go ACAB, then anything is possible.
Among the conservatives, only Justice Barrett seems to have the capacity for shame. She suggested that the case proceed to trial on the admittedly non-official acts while her colleagues play with their belly buttons. Presumably this weakness will wear off after a few more terms.
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.
