The American punditocracy was recently rattled by news that the US Supreme Court will hear Donald Trump’s absurd claim that, while president, he was a king who could have legally ordered SEAL Team Six to cap Joe Biden.
I know that’s not the specific scenario in United States vs. Donald Trump, but it’s a thought experiment that was posed in the DC Circuit Court of Appeals when it heard the case, and is very much the gist of what SCOTUS has agreed to decide.
And by so doing, the Supreme Court itself may have had the effect of capping Joe Biden.
It boggles the mind that the highest court in the land is even bothering with this ridiculous appeal, one that has been thoroughly debunked by lower courts, and the consideration of which poses vast dangers to the republic. But bothering it is, which is all the more ominous as a harbinger of what is coming next, either by accident or design.
So let me jump ahead to the conclusion, for those without the time to slog through this whole essay:
American democracy is at grave risk from a homegrown neo-fascist movement, one that is abusing the very mechanisms of that democracy in order to undermine and destroy it. And the people and institutions that comprise that democracy are not only allowing it to happen, but assisting it.
TLDNR
Few legal experts thought the Court would take up this case. Trump’s claim of total immunity is ridiculous on its very face, defying the whole premise of American democracy. The DC Circuit Court obliterated it in its airtight, well-reasoned and articulated decision of last month, and SCOTUS had no obligation to hear the appeal, or even explain why it declined to do so. It could easily have denied certiorari without comment, as it does all the time, let the solid lower court decision stand, and allowed the trial of Trump to proceed. That is what it would have done if it really wanted to protect its already badly damaged reputation, and affirm its allegedly high-minded desire to stay out of partisan politics (or so we are repeatedly told).
But it did not. So one thing we can presume is that, for some of the Court’s right wing members, any semblance of integrity (or at least the appearance thereof) is secondary to advancing its Christian nationalist agenda, optics be damned. Is that shocking? Not when recent scandals involving certain justices suggest that they don’t really give a shit about optics at all.
(Trump himself openly cheered the Court’s decision to take the case—a sure sign that it is evil. But I guess he got what he paid for.)
Let’s not forget: Trump put a full third of the justices on that Supreme Court, joining two others who are— believe it or not—even more conservative than Trump’s picks, and another—the Chief Justice—who is a garden variety Reagan-era Republican who sides with them often as not.
Them ain’t great odds. Given the GOP’s campaign of election subversion, and Trump’s own personal criminality, this was always the fear: that Trump would place justices on the Supreme Court who might someday hold his fate—either electoral or carceral, or both—in their hands. And that turns out to be exactly what is happening.
Of course, the notion that the right-leaning Court is doing this explicitly to aid Trump may be a bit unfair. There could be legitimate reasons SCOTUS took up the case.
Maybe the Court feels it’s incumbent upon it to weigh in on what election expert Richard Hasen has called “the most important case in this Nation’s history.” A decision from the highest court in the land would put a definitive end to this fundamental question once and for all, and settle the matter nationwide for all of Trump’s many trials, rather than have the same issue come up over and over, to be handled piecemeal.
Yeah, maybe that’s the Court’s thinking. But that does not mean a majority of the Court agrees that the immunity claim is so much horseshit.
The best case scenario, as noted by Tim Heaphy, formerly lead attorney for the House J6 Committee, is a quick decision that has the political side effect of convincing a majority of the American people that Trump's claim is bullshit, thus aiding his speedy prosecution. But the highly respected retired federal judge and conservative anti-Trump icon Michael Luttig argues that the only plausible reason the Court took the case is because at least one or two justices (read: Clarence and Sam) believe Trump is in fact immune. For that same reason, Luttig doubts a fast decision is in the works.
On that point, all this gymnastic speculation about why the Court is doing what it’s doing—“It just wants to go by the book, to make MAGA Nation accept its verdict!”—is beginning to feel like wishful thinking, akin to the tedious speculation about why the Republican Party at large hasn’t yet dumped Trump. I am not at all sure that this Court, like the GOP at large, wants Trump to go down to defeat, and I am even less sure that it will deliver a verdict here that hastens that outcome.
SLOWWALKING TOWARD OBLIVION
Trump has gamed and exploited the legal system his entire adult life, and continues to do so now. But that system does not have to roll over and let him do so, especially when it is very clear what he is up to. Unless, of course, the conservative elements within that system want to let him to do that, and are doing everything they can to help.
Trump’s privileged treatment by the legal system is akin to his privileged treatment by the health care system when he had COVID. In both cases, the least deserving recipient on Earth—one who had actively attacked and undermined that very system—was given the very best advantages available from it, advantages the average American would never get. Infuriating does not begin to describe it.
Oral arguments are set for April 22. A decision is not likely before the end of the Court’s current term, which would be early July. That means the soonest a trial would start—assuming the decision is not a pro-Trump travesty that shuts the case down altogether—would be late summer, and even that is unlikely. A verdict before Election Day is all but impossible.
Why is this delay so important? Because the American people have a right to hear a court of law and a jury of Donald Trump’s peers adjudicate his guilt or innocence regarding an attempted coup d’état before they go to the polls and consider him for restoration to the position of President the United States.
We all know that, shockingly, nothing thus far has dented Trump’s support among conservative voters: not paying hush money to a porn star, not “grab ‘em by the pussy,” not kissing Putin’s ass, not kidnapping migrant children, not killing hundreds of thousand by mismanaging a pandemic, not even trying to have Mike Pence murdered as part of a failed coup. Weirdly, the one thing that polls tell us would cause some of those Republican voters to turn on himwould be a criminal conviction. And the Supreme Court seems eager to step in and make sure that doesn’t happen before those voters go to the polls.
In a piece titled “The Supreme Court Just Handed Trump an Astonishing Victory,” Vox’s Ian Milhiser wrote:
It’s hard to imagine the Supreme Court signing onto this argument, which has already been rejected by two other courts. Yet Trump has now, with Wednesday’s ruling, leveraged this ridiculous legal argument to delay his DC trial for at least four and a half months, and the delay will likely extend much longer because the Court will need time to produce an opinion.
Milhiser called it “a colossal victory for Trump,” one that “could potentially allow him to evade criminal responsibility for his attempts to overthrow the 2020 election altogether.”
Simply put, Wednesday’s order is a disaster for anyone hoping that Trump may face trial before the November election. And, because the nominal reason for this order is to give the justices more time to decide if the president is completely above the law, this decision raises serious doubts about whether this Court can be trusted to oversee Trump-related cases in a nonpartisan manner.
We have all heard that most legal experts believe the Court will ultimately reject the immunity claim. Then again, most experts believed it wouldn’t take it up in the first place. Even if the Court does reject ultimately his immunity claim, the sheer time it is taking to do so will have aided Trump beyond comprehension, which may be all he wants or needs. Therefore, if the political benefit of this delay allows Trump to win re-election, none of the attendant details will matter, not even a final ruling against him…..because he will be president again and can shut down this case, as part of a broader effort to institute a right wing dictatorship that he is openly advertising and campaigning on.
As my friend Scott Matthews points, out, there is also the chance SCOTUS rules that Trump’s actions were sufficiently close to “official,” where presidential immunity is already settled law. (That is certainly what—hold onto your red baseball hat—the Wall Street Journal thinks.) Of course, it’s risible that trying to overturn an election would fall under a president’s official duties, but not inconceivable that a Supreme Court with a right wing supermajority would rule that way.
Would they give Biden the same immunity? Of course not.
Obviously, if we had a functional Court whose right wing members showed a shred of principle, Clarence “Big Man” Thomas would recuse himself. But you may have noticed, we don’t. At least Ginni, who was an active collaborator in the attempted coup at the center of the case the Court will hear, will be happy. I’m sure they’ll have a laugh about it on their next trip on Harlan Crow’s private jet.
SHAKE IT LIKE A POLAROID PICTURE
As I have written here and elsewhere, future generations may well look back on the actions of the people and institutions of the United States in this period with absolute head-shaking astonishment.
Not because the Republican Party squandered its chance to be rid of Trump after January 6th. That way of thinking presumes the GOP is a reasonable political party that wants to be rid of him, and not a neo-fascist Christian dominionist insurgency happy to have him at his head. Nor will our descendants shake their collective noggin at the fact that roughly 30% of Americans are fully on board with that autocratic endeavor. We know our country has always had a robust subset of slavering pro-authoritarian troglodytes.
But they will headshake a-plenty at the foolish willingness of the vast, non-cretinous but insufficiently bothered majority to let its own democracy be destroyed, even after narrowly dodging that fate only a few years before at the hands of that very same asshole and his army of eager gargoyles.
Now, you may say: “Hey, King’s Necktie, you’re being irrational and emotional. Much as you may hate Trump, and as serious a threat as he is to American democracy, we have to play by the rules, otherwise we become what he is.”
(You can call me Bob by the way. Or Bobby. Or RJ. Or you can call me Al; it was Al all the time.)
I hear you, dear readers. We absolutely ought to give Trump due process and the full benefit of the law that any accused individual deserves. We ought to dot our i’s and cross our t’s and do everything by the book, both for the principle of it, and to deny MAGA Nation any reason to claim victimization or martyrdom or injustice. (For all the good that will do. They will cry foul anyway.)
But the Constitution is not a suicide pact. We can stay within the letter—and spirit—of the law without bending over backwards to accommodate a brazen fascist who has openly declared that, if elected, he intends to trash the very system that protected and abetted him. And the behavior of so many right wing politicians and government officials on that front, including, apparently, at least a few justices on the Supreme Court, suggests that they are not acting out of naïveté at all but active, palm-rubbing malevolence.
Right after Biden beat Trump in 2020 (it’s true, Republicans—look it up!), I wrote a piece called “The Ghost of Grover Cleveland,” ruminating on the odds that Trump could come back and win a second term. I didn’t rule it out, though at the time he seemed grievously wounded. His prospects looked even worse after the failed coup of a few weeks later, when it seemed that even the craven GOP was going to break with him at last. Apparently we all badly underestimated the depths of the Republicans’ cowardice and avarice.
I guess I figured when you were already in Death Valley, you couldn’t go any lower……but I forgot about the Marianas Trench, where the GOP seems to be building a gated community.
Devil’s advocate: Does Hasen’s aforementioned assessment of the importance of this case not argue for moving slowly and carefully? Sure, to an extent—but not when one of the factors making it so important is the time-sensitive nature of the threat a second Trump presidency poses to American democracy.
The Court certainly does not have to move this slowly. In 1974, it heard arguments in United States v. Nixon and issued its decision within weeks. It moved even faster in Bush v. Gore, issuing an opinion within a matter of days. Fred Wertheimer, founder and president of the nonprofit watchdog group Democracy 21, told the Post:
This case is just as important, probably more important, than the Pentagon Papers case, or the (Watergate) tapes case. If they wait and issue the opinion at the end of the term in June, they likely will have knowingly prevented voters from knowing if Trump is a convicted felon before they vote. They will have rewarded Trump’s delaying strategy at the enormous expense of the country and the Supreme Court.
In an op-ed for MSNBC, Wertheimer, Norman Eisen, former impeachment counsel to the House Judiciary Committee, Joshua Kolb, former law clerk on the Senate Judiciary Committee, wrote:
There is no excuse for the court to drag its feet. The issues have already been fully briefed multiple times, and the justices are well aware of both the legal arguments and the stakes. Unnecessary delays risk depriving voters of knowing whether Trump attempted to criminally subvert our democracy when they cast their ballots for president.
But it wouldn’t be the first time those folks in black robes reached in and decided a presidential election.
ONLY FANS
In a recent piece for The Bulwark titled “Delay is a Choice,“ Bill Kristol wrote that in taking up Trump’s laughable immunity claim, and thereby abetting his attempt to run out the clock before November 5, the Supreme Court “broke no laws or even rules,” which speaks to the insidiousness of the act. Michael Waldman, president of the Brennan Center for Justice at New York University Law School, made a similar point, telling the Washington Post, “This appears to be the approach that helps Trump the most while appearing not to.” The former federal prosecutor and Mueller team member Andrew Weissmann calls the Court’s decision to hear this case de facto immunity, a point also made by Waldman, who tweeted, “The Court effectively granted Trump immunity for his alleged crimes, regardless of whatever ruling they make later.”
This latest delay of at least two months comes on top of a previous delay of two and a half months that the Court created last December when it declined Jack Smith’s request for an expedited ruling on this very issue, in order to avoid the exact problem we now find ourselves facing. (One small but hopeful sign is that the Court has fast-tracked written arguments in this case, but even then it is giving the two sides seven weeks to do so.) And there could be more delays to come. The high court could send the case back down to Judge Tanya Chutkan for further distinguishing between immune and non-immune presidential conduct, or engage in any number of other arcane and time-consuming legal maneuvers…..all while the fuse is burning down on a giant Boris Badenov-meets-Wile E. Coyote-sized pile of antidemocratic dynamite.
Yet another former federal prosecutor, Lisa Rubin, has predicted that Judge Aileen Cannon, the Trump toady who is presiding over the stolen documents case down in Florida, will surely use the Supreme Court’s action as an excuse to delay that trial as well. Frankly, she would be justified in so doing, unlike many of her other rulings—just another reason why SCOTUS’s decision to grant cert is so destructive. Meanwhile, the election interference case in Georgia has already been delayed thanks to the brouhaha over Fani Willis’s conduct of that prosecution, even though her actions in no way affect the material allegations against the defendant.
All this delay means that the first criminal trial Trump will face is the New York City case against him for paying hush money to Stormy Daniels. In fact, that trial, currently set to begin to on March 25, may be the only one that takes place before November. Former Watergate prosecutor Nick Akerman believes that Trump faces “certain conviction” in that matter. But many have lamented this sequencing, as that case seems so minor, and, well…..sordid. (An opinion often delivered with a heavy dose of sanctimonious misogyny.)
Will a conviction in the Daniels case makes the same difference to Republican voters as a conviction for trying to overthrow the government? Akerman believes it should, if we are successful in reminding them that this was not just about a cheating husband trying to hide a zipless fuck from his wife, as Trump claims. Coming just days after the release of the Access Hollywood tape, when his candidacy seemed to be on life support, it was about the presidential nominee of one of our two major parties trying to keep word of a scandal from reaching the ears of the voters.
In other words, it too is a case about election interference, just like the Florida and Georgia and DC trials.
THE ONCE AND FORMER GUY
The crux of Kristol’s Bulwark piece was this, and a cutting one it is:
So those who hoped the legal system would stop Donald Trump are almost certain to be disappointed. As were those of us who hoped the United States Senate would stop Trump in February 2021. As were those who hoped the Department of Justice would move quickly to hold him accountable in 2021 and 2022. As were those who placed their faith in Republican elites in 2023 or Republican primary voters in 2024.
Where does that leave us, the American people? Relying on ourselves. Perhaps that’s as it should be.
After all, here the people rule.
For now.
Maybe Kristol is right. Maybe even if all the trials are delayed, Biden will beat Trump anyway. That would be great—perhaps even better than if he is beaten because he is damaged goods after a criminal conviction. But the “system” is sure giving Donald every possible advantage to avoid that fate.
We shall see what SCOTUS’s ultimate decision is, and how fast it renders it. I am not super optimistic on either count. If the Court makes an honest assessment of Trump’s immunity argument, I’m betting on a 7-2 ruling against him, delivered at the very end of its term, in early July. But if the majority takes the coupmaking-is-an-official-act position, it could go 6-3 the other way.
The stakes could not possibly be higher.
In case you thought Republicans were kidding about being the party of neo-fascist White Christian nationalism, at CPAC last week, outside Washington, D.C., the right wing gadfly Jack Posobiec gave opening remarks in which he said: “Welcome to the end of democracy. We are here to overthrow it completely. We didn’t get all the way there on January 6, but we will endeavor to get rid of it and replace it with this right here.” He then held up a cross necklace and continued: “After we burn that swamp to the ground, we will establish the new American republic on its ashes, and our first order of business will be righteous retribution for those who betrayed America.”
What does Maya Angelou say? Something about believing people, I think.
“Democracy is evil, democracy is mob rule,” said another CPAC attendee, called Tommy Tatum, who recorded himself harassing Capitol police officers at the trials of January 6 insurrectionists, whom he has defended in their attempts to overturn the election. NBC reported that neo-Nazis and other white nationalists openly mingled and proselytized at the conference as well, and received a warm reception.
Remember when CPAC felt like a kinda kooky but generally benign Mummers Parade for Republicans? Good times.
At that same conference, Don the Con showed up and engaged in his continuing gimmick of hugging the Stars & Stripes, a trope that, to me, summarizes his whole grift in a nutshell. The idea that a person loves America so much that they can't see the flag without hugging it is infantile. Even so, the idea that this particular individual loves America that much—despite a lifetime of evidence that he doesn’t love anyone other than his own fat ass, not even his own family, whom he would throw under the bus in a New York minute—is something that only an absolute sucker would buy. Yet he continues to do it, and his fans continue to eat it up.
If it were a Russian flag, I'd believe it.
If they regain power, Donald Trump and the GOP have openly boasted that they will shred the Constitution, extract revenge on their enemies, and institute a regime that would make Margaret Atwood blanch. Daily we learn more and more of their plans. I say “learn,” but little homework is required, because they are bluntly announcing it. It’s Mein Kampf all over again, and I won’t back off from that analogy, no matter how much the people rubbing elbows with neo-Nazis complain that it’s unfair to compare them to Nazis.
The question is, are we going to pay attention to the flashing red lights and howling warning sirens, or not?
MANSPLAINING FOR BOOMERS
Online discourse is replete with initialisms, and one that puzzled me for a long time—I’m over 21—was SMDH. Eventually I learned (for others who remember vinyl records, answering machines, and paper checks) that it stands for “shaking my damn head.” It’s what you write when something is gobsmacking, dumbfounding, or otherwise mind-blowing, in a way that beggars comprehension.
It perfectly describes how future generations may well look back on America’s inexplicable, nonchalant, self-destructive slide into a second Trump administration and the likely end of participatory democracy in these 50 states.
That is to say, something very close to TEOTWAWKI, or at least TEOAmericaAWKI. And it will not leave me ROTFLMAO.
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Illustration: Trump doing his idiotic, trademark “flag hug” at CPAC last week, apparently after sucking on a lemon.