SCOTUS Conservatives Struggle To Invent Immunity – ONLY For Trump

The Republican appointed, Federalist Society groomed Fascists on the Supreme Court have what for them is a problem but also an opportunity. It’s not going to go over at all well with a majority of Americans when they invent out of thin air, or maybe chunks of undigested “hamberders” in the sewer under Mar A Lago Presidential Immunity for Trump. And only (somehow) for Trump. On the other hand as hard core Federalist Society adherents they are staunch advocates of the Unitary Executive Theory. Only like their mentors the most extreme interpretation of it. That, combined with Presidential Immunity means a President can be kind. Or a dictator. Or a combination of the two.

That’s one hell of a wet dream they’ve been having and I’m sure on a nightly basis.  However, while SCOTUS conservatives have shown an evil willingness and even talent for inventing legal sh*t they can IMPOSE on the lion’s share of Americans this is something at a whole new level. Keep in mind that conservatives only believe in their Unitary Executive bullsh*t when a Republican is President.  And for damned sure when it comes to Presidential Immunity, whether for civil or criminal actions they don’t want Democratic Presidents to have one bit of the kind of power either their version of a Unitary Executive or Presidential Immunity can confer!

I’d ask you to indulge me by taking a look at where were are right now and how the hell we got here:

Remember the not-all-“good”-old-days when conservatives, especially Justices were adamant about certain words or terms not being specifically being found in the Constitution? Where does it say the word “Privacy” they’d ask. Or “Abortion?” At best they’d chide us with “tsk tsk” but more often go on to lecture us that if those who wrote the Constitution meant there to be such rights then they by god would have spelled them out! How DARE we liberals even think, much less suggest something like a “living Constitution” that could be adapted to the climate of the times absent Constitutional Amendment? Well, as is so often the case with conservatives and conservative Justices they have proven themselves to be hypocritical pieces of sh*t.

While the word “privacy” (upon which the right to abortion provided by Roe was based) doesn’t appear in the text of the Constitution it’s articulated in different language in other places. The concept of individual rights including in the home and in daily life and practices is in fact addressed. I’ve looked again and what I don’t find is ANY sense, even a vague one of Presidents being immune from prosecution. On the contrary. At best one could (reasonably) argue that for practical purposes, as the OLC held in a now infamous memo written to force former VP Agnew out of Office for practical reasons at best criminal prosecution of a President should be deferred until they are out of Office.

That can be via either impeachment and conviction by the House and then Senate respectively, their term (second one) ending or being voted out. However, in a unanimous decision the Court (with four, count em FOUR) of the members having been appointed by him that not only could prosecutors investigate Nixon, legally he was required to respond to their subpoena(s) for evidence. Hence the Oval Office tapes Nixon fought so hard to keep secret got turned over. You know the rest.

Lest we forget, conservatives and their real life Inspector Javert Ken Starr attempted as part of his sprawling investigation of Bill Clinton to prosecute HIM. And succeeded which led to the deal where he pled and surrendered his law license.  Fun fact: among the young conservative “Turks” who worked along the way with Starr in the relentless pursuit of Clinton were a couple of guys named Roberts and Kavanaugh. Yep. Now better known as Chief Justice John Roberts and Associate Justice Brett Kavanaugh! Funny how they seem to have changed their tune isn’t it?

You see, like another mentor of theirs (Bill Barr) they and other proponents of the “Unitary Executive Theory” only mean it to apply to REPUBLICAN Presidents. (John Dean, who learned some bitter lessons from onetime devotion to Nixon “In its most extreme form, unitary executive theory can mean that neither Congress nor the federal courts can tell the President what to do or how to do it, particularly regarding national security matters.” I should note Bill Barr has for decades been a HUGE proponent of this view) They are “shocked, shocked I say” at the thought of a Democratic President being afforded that same sweeping power. (Horrified is more accurate I think)

The fact is, Presidential Immunity wasn’t even a thing until the early 1980s when Nixon faced a bunch of civil lawsuits.  That led to the Fitzgerald decision in 1982.  Leave it to Nixon to take one last giant dump on the country by pushing a minor case all the way to SCOTUS. Presidents get sued all the time (only the Secretary of the Interior gets sued more), and the suits almost always got summarily dismissed. For lacking standing or merit or both. Once in a blue moon such a suit at least clears the bar for actual consideration in an actual court case. The Fitzgerald ruling held that for civil lawsuits over decisions/actions a President makes while in office they are immune from prosecution. The part Trump lawyer John Sauer left out in his repeated citing of the decision is that the Court pointed refused to include and language regarding criminal liability. From Wikipedia:

In a 5–4 decision, the Court ruled that the President is entitled to absolute immunity from legal liability for civil damages based on his official acts. The Court, however, emphasized that the President is not necessarily immune from criminal charges stemming from his official or unofficial acts while he is in office. The Court found that “the President’s absolute immunity extends to all acts within the ‘outer perimeter’ of his duties of office.

Now you know where all the discussion we started hearing all the way back during the appeal hearing in January and since comes from. The important point is that, the Justices could have taken a more expansive view and addressed criminal immunity and chose not to. Just as Justice Sotmayor noted yesterday when she said the framers knew all about Presidential Immunity, could have included it in the Constitution but chose NOT to!  And remember, in the prior decade SCOTUS ruled in the Oval Office tapes case a President could be investigated for criminal activity. It went, at least at the time without having to be bluntly stated that meant if charges were warranted as the result of said investigation Nixon or any President could be charged and tried.

Then Ford pardoned Nixon. And more importantly Nixon accepted the pardon. Legally speaking that means acknowledgement of the crimes. There are in fact TWO SCOTUS precedent setting decisions on this point – acceptance of a pardon means acceptance of guilt. Hence the comment (I don’t remember which Justice) yesterday referring to Nixon pardon from Ford and “What was that all about” – a kind of sarcastic reminder to Sauer that he was full of sh*t.

I wrote here on Politizoom last night that just by accepting the Trump appeal, and then delaying hearing it as long as they did (yesterday was the last day on their calendar they could have done so) they already made the most important ruling – no trial for Trump on the DC case at least until after the election. As we know they aren’t worried about Florida as judge “Loose Cannon” has no intention of allowing a trial before then. Also, at this point even if she crossed the line and Jack Smith gets the 11th Circuit involved again and she gets kicked off the case practically speaking starting over with a new judge means that case won’t go to trial before November.

So that gets them back to their REAL problem. The six GOPers that The Federalist Society spent all those decades installing on the Court are afraid Trump will lose this fall. They know for damned sure that a conviction in DC will ensure it, AND as I said there is information we don’t yet know that will be introduced as evidence. At least two of them, Thomas and Alito would like to retire but they DON’T want a Democratic President, and worse a Democratic Senate appointing/confirming their replacements. Yes, despite a highly unfavorable map the Democrats have a real shot at retaining control of the Senate, thanks in large measure to the Dobbs decision. Hoisted on their own petard so to speak. Karma can be a real motherf**ker sometimes.

So, like Cannon they found a way to keep Trump from facing a trial that would ensure not only his loss but probably wider GOP losses, and down into the state level where extreme GOP gerrymanders might further erode ill-gotten Republican legislative gains. However, as I said at the beginning even these asshats are leery of complete, blanket immunity. Sure, they have good reason to believe any Democratic President would be honorable and respect norms but given the havoc they are reaping they’d rather not take too many chances.  I wonder if they’ve woken up from nightmares of a Biden ordered team of Special Ops or CIA paramilitary operatives sneaking into their room in the middle of the night. Slapping duct tape over their mouths and putting a black bag over their head. And in the morning be hanging dead from a lamp post in downtown DC. To be replaced by 40 year old clones of either Ruth Bader Ginsburg or Thurgood Marshal.

Well, it seems Total immunity is out. They made that pretty clear yesterday. Broader immunity? Sure, but they need to find a way to make sure ONLY Trump gets to use it! I’m sure some of them have been working like hell to invent SOME kind of plausible excuse for what they want to do. Something that won’t provoke so much outrage that by this time next year another four justices will be added to their number. And Roberts and Alito (Roberts in particular) don’t up and die and give Democrats even MORE seats!

Of course, having accomplished the “prime directive” of preventing a trial in DC until after the election they could do the right thing and decide to deny this ridiculous concept of Presidential Immunity for criminal acts. Or at least say THIS case doesn’t warrant such a step while leaving the door open to the possibility in the future (gotta keep that largesse from the Harlan Crowes coming) and suggest Congress pass something that spells out some parameters for them to chew on. That’s possible. It’s also possible I’ll win the lottery. AND that President Biden will make me Commandant of my Marine Corps. I’m not holding my breath.

I’m not a big fan of Joy Reid but she was on a roll last night and she said something that resonated with me. They are no longer pretending. They are going to protect Trump no matter what. I don’t take much consolation in the fact that instead of just flat out admitting “We aren’t going to allow Trump to be prosecuted. Period. End of discussion” that they will have to put in some serious work to try and come up with a decision that only smells as bad as Trump’s bathroom when he takes his morning sh*t.

I’m still disgusted beyond belief today. I’m also quite certain I’ll become more so in the days ahead as I continue sorting through all this. And how all this plays out after we see who all says what on the Sunday morning news shows. It’s not much to hang your hat on, but maybe, just maybe Roberts is still clinging to his once strong delusions of grandeur about his legacy, and can as Murfster suggested here last night pull Justice Barret on board to reject Trump’s appeal. Or the other way around, which was something else Murf suggested was possible.

Given earlier in the week she posed some pointed questions the the “why are women even allowed to be up there on the daise” attitude about how draconian Idaho’s abortion ban is. Oh, she’s still staunchly against abortion BUT even she recognizes the awful impact of that law on women’s health care – specifically emergency care when their very lives are in danger. Then yesterday she seemed to toss some hard, inside fastballs at Sauer so who knows?

We will have to wait and see like we always do. But the operative word is wait. And hope that in the end these Trump fluffers show at least some restraint and allow some level of prosecution. AFTER the election of course!