A FEW THOUGHTS ON SUPREME COURT REPUBLICANS' LATEST CONSTITUTION REWRITE

News reports suggest that the Supreme Court is about to grant Donald Trump a massive amount of immunity from prosecution for acts committed while in office, but probably not absolute immunity. After opening arguments, The Atlantic's Ronald Brownstein wrote:

The arguments showed that although the Court’s conservative majority seems likely to reject Trump’s claim of absolute immunity from criminal prosecution, four of the justices appear predominantly focused on limiting the possibility that future presidents could face such charges for their actions in office, with Chief Justice John Roberts expressing more qualified sympathy with those arguments. Among the GOP-appointed justices, only Amy Coney Barrett appeared concerned about the Court potentially providing a president too much protection from criminal proceedings.

Even the (understandably) alarmist Dahlia Lithwick and Mark Joseph Stern at Slate believe that Trump probably won't get everything he's asking for:

The prospect of a criminal trial for a criminal president shocked and appalled five men: Thomas, Alito, Kavanaugh, and Gorsuch suggested that Smith’s entire prosecution is unconstitutional; meanwhile, Roberts sounded eager at times to handle the case just a hair more gracefully: by cutting out its heart by preventing the jury from hearing about “official acts” (which lie at the center of the alleged conspiracy).

I called it in early March:

I think the Court will grant Trump, and all future presidents, "limited" immunity from prosecution for acts committed while in office....

I think the Court will grant partial immunity while greatly reducing Trump's legal jeopardy. The Court doesn't want to give presidents blanket immunity because, obviously, that would also apply to Democratic presidents, and we can't have that. The Court will toss out some of the charges because it can, and because fuck you, liberals, that's why.

And obviously, if a future Republican president's Justice Department wants to prosecute a former Democratic president, the scope of "official acts" will magically narrow, again because fuck you, liberals.

Trump won't get absolute immunity but, as I've been saying on social media today, he'll tell us he did:

If the Supreme Court gives Trump partial immunity, which seems very likely, he'll say he was given "absolute immunity." He'll say this over and over again, often in all caps, the way he used to repeat "no collusion," and at least 45% of the country will believe it's true.

— Steve M. (@stevemnomoremister.bsky.social) Apr 26, 2024 at 7:03 AM

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Remember this charming story from last year?

In 2018, after a teenage gunman murdered 14 students and three faculty members at a high school in Parkland, Florida, Jennifer Birch, fearing for the safety of her own children, decided to join the fight against gun violence.... Birch’s mission, as part of a volunteer force for the gun safety group Moms Demand Action, has been to identify Santa Ana, California, firearm regulations from the 1800s and earlier—all part of an effort to satisfy the Supreme Court’s increasingly preposterous whims about what’s necessary to prove a firearm regulation is constitutional....

In 2022’s Bruen decision, the Supreme Court struck down bans on concealed carry and expanded upon the previous standard for determining the constitutionality of gun regulations, declaring that authorities had to find analogous gun laws that existed prior to 1900. Justice Clarence Thomas, writing for the court, found that before that date, concealed carry bans were not part of America’s history and traditions, and they were thus unconstitutional....

Birch is one of about 20 volunteers with Moms Demand Action, part of the gun safety group Everytown, who are scouring archives across the United States for historical firearm regulations.

(The researchers have found many pre-1900 gun laws that greatly resemble modern gun restrictions. Of course, the Supreme Court doesn't care.)

If you were extraordinarily naive, you'd think the Court might apply this "historical tradition" standard to every case. But as Jamelle Bouie notes, presidents were historically understood not to be above the law, but the Republican justices (apart from Amy Coney Barrett) don't want to know that:

In a detailed amicus brief submitted in support of the government in Trump v. United States, 15 leading historians of the early American republic show the extent to which the framers and ratifiers of the Constitution rejected the idea of presidential immunity for crimes committed in office....

“In America the law is king,” Thomas Paine wrote in his landmark pamphlet, “Common Sense.” “For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.” ...

Years later, speaking on the Senate floor, Charles Pinckney of South Carolina — a delegate to the Constitutional convention in Philadelphia — said outright that he and his colleagues did not intend for the president to have any privileges or immunities: “No privilege of this kind was intended for your Executive, nor any except that which I have mentioned for your Legislature.”

What’s more, as the brief explains, ratification of the Constitution rested on the “express” promise that “the new president would be subject to criminal conviction.”

“His person is not so much protected as that of a member of the House of Representatives,” Tench Coxe wrote in one of the first published essays urging ratification of the Constitution, “for he may be proceeded against like any other man in the ordinary course of law.”

James Iredell, one of the first justices of the Supreme Court, told the North Carolina ratifying convention that if the president “commits any misdemeanor in office, he is impeachable, removable from office, and incapacitated to hold any office of honor, trust or profit.” And if he commits any crime, “he is punishable by the laws of his country, and in capital cases may be deprived of his life.”

Yes, you read that correctly. In his argument for the Constitution, one of the earliest appointees to the Supreme Court specified that in a capital case, the president could be tried, convicted and put to death.

Originalism? Textualism? Not this time.

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Bouie is cautious about predicting how all this will affect the timing of Trump's election interference case:

... the Supreme Court has directly intervened in the 2024 presidential election in a way that deprives the electorate of critical information or gives it less time to grapple with what might happen in a federal courtroom. And if the trial occurs after an election in which Trump wins a second term and he is convicted, then the court will have teed the nation up for an acute constitutional crisis. A president, for the first time in the nation’s history, might try to pardon himself for his own criminal behavior.

The Republicans on the Court didn't come this far only to allow the possibility of a trial after the election. They want this over and done with. The zealots will take their sweet time writing up their ruling, or, if Roberts writes the ruling, they'll dawdle on their much more zealous partial concurrence. They'll get the case sent back down to the lower courts, and they'll force Jack Smith and his team to pull their case apart and put it back together with the few pieces left to them. The trial won't happen this year, and if it ever happens, it will be a pale echo of what it should have been. The Republicans on the Court want nothing to stand in the way of victory for their party's presidential standard-bearer, obviously, but they also want to minimize any embarrassment to their party even if he loses.