He barely made it on as a justice when the vote happened, he was just as whiny then. But who knew he was also not a smart person and apparently, to hide that fact, resorts to griping about things, including whining when someone (rightly) calls him out on his terrible, hypocritical decisions.
That includes his comments from the other day on presidential immunity. We don’t have a king and “no one is above the law” has been, at least I thought so, a principal tenet of our justice system. If he doesn’t believe that, then maybe he needs to go retire to his rocking chair and let somebody that actually admires our system take over. Of course, then he wouldn[t get all those goodies, including paid trips to resorts, ethical behaviour not being one of his strong suits.
From Civil Discourse with Joyce Vance
It’s hard not to read into those questions a certain sense that there are Justices on the Supreme Court who believe Trump is the victim he always claims he is. It’s ludicrous that Trump’s lawyers can claim he could order a political rival killed and that some of the Justices would nod in agreement. Presidential immunity is antithetical to democracy. As we wait, all we can hope is that common sense and good judgment prevails, lest they sacrifice all accountability for future presidents in order to protect this failed one.
Yet there was Justice Alito, turning democracy on its head and asking the Special Counsel’s lawyer, “I’m sure you would agree with me that a stable democratic society requires that a candidate who loses an election — even a close one, even a hotly contested one — leave office peacefully, if that candidate is the Incumbent.” The response was, “Of course.” Then this astonishing comment from the Justice, “All right. Now, if an incumbent who loses a very close hotly contested election, knows that a real possibility after leaving office is not that the President is going to be able to go off into a peaceful retirement, but that the President may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destablilizes the functioning of our country as a democracy?”
I have questions for Justice Alito:
- Since the premise is that someone who loses an election should leave office peacefully or we are no longer a stable democracy, why not hold Trump accountable? He’s the one who tried to avoid leaving office.
- How does ending accountability under the law for all future presidents to protect only those who aren’t committed to the peaceful transfer of power make any sense? Trump is the only president to interfere with the transfer of power; why not deal with that directly instead of cowering in fear to future Trumps? Pretending political prosecutions will become rampant ignores centuries of our history. Trump is being prosecuted because he committed overt crimes.
- Why does Alito think all future presidents will co-opt the Justice Department so political prosecutions will become the norm? Biden has been careful to avoid any pressure, or even appearance of pressure, on DOJ. No prior president has used the Justice Department to prosecute his predecessor for political reasons. Why not hold the one guy who has committed crimes accountable instead of theorizing that if we do, other presidents might engage in misbehavior akin to his? Isn’t prosecution the best deterrent?
I have so many questions about how Justice Alito arrived at this position. It doesn’t make any sense. I hope Justice he reconsiders or is in the minority on this one. If presidents are kings, we become a democracy in name only.
Some additional reading about that astonishing SCOTUS hearing the other day
Rogue Supreme Court Abandons Democracy In Her Hour Of Greatest Need
When Justice Samuel Alito, the most villainous political figure in my lifetime, asserted without any irony that prosecuting a president for refusing to relinquish power after losing an election might encourage future presidents to hold on even more firmly to their office, any remaining optimism I could muster about American democracy and its institutional ability to defend itself against tyranny drained away.
The Last Thing This Supreme Court Could Do to Shock Us
Justice Samuel Alito best captured the spirit of arguments when he asked gravely “what is required for the functioning of a stable democratic society” (good start!), then answered his own question: total immunity for criminal presidents (oh, dear). Indeed, anything but immunity would, he suggested, encourage presidents to commit more crimes to stay in office: “Now, if an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?” Never mind that the president in question did not leave office peacefully and is not sitting quietly in retirement but is instead running for presidential office once again. No, if we want criminal presidents to leave office when they lose, we have to let them commit crimes scot-free. If ever a better articulation of the legal principle “Don’t make me hit you again” has been proffered at an oral argument, it’s hard to imagine it….
Is the president, Sotomayor asked, immune from prosecution if he orders the military to assassinate a political rival? Yes, said John Sauer, who represented Trump—though it “depends on the circumstances.” Could the president, Justice Elena Kagan asked, order the military to stage a coup? Yes, Sauer said again, depending on the circumstances. To which Kagan tartly replied that Sauer’s insistence on specifying the “circumstances” boiled down to “Under my test, it’s an official act, but that sure sounds bad, doesn’t it?” (Cue polite laughter in the chamber.)
And Kavanaugh not too smart either
The conservative justices are so in love with their own voices and so convinced of their own rectitude that they monologued about how improper it was for Dreeben to keep talking about the facts of this case, as opposed to the “abstract” principles at play. “I’m talking about the future!” Kavanaugh declared at one point to Dreeben, pitching himself not as Trump’s human shield but as a principled defender of the treasured constitutional right of all presidents to do crime. (We’re sure whatever rule he cooks up will apply equally to Democratic presidents, right?) Kavanaugh eventually landed on the proposition that prosecutors may charge presidents only under criminal statutes that explicitly state they can be applied to the president. Which, as Sotomayor pointed out, would mean no charges everywhere, because just a tiny handful of statutes are stamped with the label “CAN BE APPLIED TO PRESIDENT.”
Trump immunity fight turns Supreme Court textualists topsy-turvy
Two years ago, conservatives relied on a strict interpretation of the Constitution’s text and original meaning to overturn the federal right to abortion. But on Thursday, as they debated whether Trump can be prosecuted for his bid to subvert the 2020 election, they seemed content to engage in a free-form balancing exercise where they weighed competing interests and practical consequences.
Some critics said the conservative justices — all of whom purport to adhere to an original understanding of the Constitution — appeared to be on the verge of fashioning a legal protection for former presidents based on the justices’ subjective assessment of what’s best for the country and not derived from the nation’s founding document.
“The legal approach they seemed to be gravitating toward has no basis in the Constitution, in precedent, or logic,” said Michael Waldman, president and CEO of New York University’s Brennan Center for Justice. “It sure ain’t originalism.”
Conservative Legal Philosophy Was All a Lie, Too
If it believed that, for reasons of legitimacy, it needed to weigh in, the Court could have granted cert to this appeal on the narrow question of whether or not Donald Trump, in this particular case, could claim immunity.
Instead, the Court granted cert on the widest grounds possible, giving itself the scope to define presidential immunity for all time. Kim Wehle talked about this choice last night and it is striking how the conservatives on this Court were eager for the chance to create precedent.
“We’re writing a rule for the ages,” Justice Neil Gorsuch said during oral argument.
But no one asked Gorsuch to write a rule for the ages. The Court was given a narrow question to decide and the Court’s conservatives chose to widen the aperture as much as possible so that they could make right some cosmic wrongs they see in American law.
Which is exactly what conservatives used to complain that liberal judges did.
..
I want to be very clear about what Justice Alito is saying here:
- Donald Trump attempted a coup, and failed.
- The criminal justice system is attempting to hold him accountable for this clear violation of the law.
- But doing so might lead to some other president to attempt a coup.
- So if someone attempts a coup they must not be prosecuted.
- Because if you prosecute them, they might attempt another coup.
The Alito Theory sees a coup as merely an alternate path to power, no more or less valid than an election.2 If a coup is attempted and succeeds, the couper becomes president and faces no consequences. If a coup is attempted and fails, the couper is immune to prosecution and free to attempt another coup in the next election. And perhaps even in the election after that.
From Alito’s perspective, a coup is no different from a recount or a lawsuit attempting to disqualify ballots. It’s just another electoral Hail Mary pass.
When you read this last part and see the video where Justice Sotomayer asks whether Trump can assassinate a political rival, is that an official act, and Trump’s attorney said it could well be an official act, ask yourself how the SCOTUS justices would like it if Trump, or any president, decided to assassinate THEM???
Sauer conceded to Justice Amy Coney Barrett that the former president* would be criminally liable for “private acts”—e.g., hiring outside attorneys to press his fake-electors scheme. (Adios, Sidney Powell.) Unfortunately, Sauer’s definition of “official acts” apparently stretches to Jupiter. For example, under questioning by Justice Sonia Sotomayor, Sauer argued that the fake-electors scheme could be an “official act.”
SOTOMAYOR: What is plausible about the president insisting and creating a fraudulent slate of electoral candidates, assuming you accept the facts of the complaint on their face? Is that plausible that that would be within his right to do?
SAUER: Absolutely, your honor. We have the historical precedent we cite in the lower courts of President Grant sending federal troops to Louisiana and Mississippi in 1876 to make sure that the Republican electors got certified.
I am no great legal mind, but I think using federal troops to protect Black voters from white mobs in a country only a decade removed from a civil war is not the same as concocting a fraud to overturn an election as an adjunct to an insurrection you helped incite.
