I fought the law and …
I fought the law and …
BONUS ESSAY! Behind the scenes in the highest court of the land
On Aug. 1, 2023, the U.S. Department of Justice filed four charges against former President Donald Trump in connection with his attempt to influence the 2020 presidential election: Conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of and attempt to obstruct an official proceeding; and conspiracy against rights, specifically “the right to vote, and to have one’s vote counted.” Trump’s lawyers pleaded elements of the case to the Supreme Court of the United States.
On July 1, 2024, in a 6-3 ruling, the Supreme Court concluded that presidents and former presidents have broad immunity from criminal prosecution for official acts they took while in office. With that proviso, the case was sent back to the trial court.
In August 2024, special counsel Jack Smith submitted a new court filing, which was unveiled earlier this month. In it, Smith identified Trump’s actions in regard to the election as those of a presidential candidate, not a president. In several places, the filing notes, “Under the Constitution, the Executive Branch has no constitutionally assigned role in the state-electoral process.” Thus, Smith says, Trump’s actions are not protected by the Supreme Court’s immunity ruling and the indictment should proceed to trial.
While we wait to see what happens next …
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MR. SMITH & THE SUPREMES
A ONE-ACT PLAY
(SCENE: Supreme Court building breakroom. Chief Justice John ROBERTS enters. He fills a coffee carafe with water, pours it into a coffeemaker, adds scoops of ground coffee to the filter. Associate Justice Brett KAVANAUGH enters.)
KAVANAUGH: Hello, Chief Justice. Got another pot going?
ROBERTS: Just turned it on. How are you this morning?
KAVANAUGH: Oh, fine. I guess you’ve seen Smith’s filing.
ROBERTS: Yeah, I stayed up to read it last night. That’s why … (gestures toward coffee pot).
KAVANAUGH: I hear ya. Well, the good news is that your boy Trump is probably going to win, at least the Electoral College vote, so we won’t have to deal with it at all.
ROBERTS: He’s not “my boy.” Man, what a pain in the ass he’s turned out to be. We should’ve thrown him under the bus years ago.
KAVANAUGH: Now, now, sir. I probably wouldn’t be here today if you’d done that. (Both chuckle.)
ROBERTS: It’s still tempting, Britt. This goofball real estate salesman has been yanking our chains for a good decade now. It’s a little humiliating.
(Associate Justice Samuel ALITO enters.)
ALITO: Hey, boys.
ROBERTS: Hello, Sam.
KAVANAUGH: Hi, Sam. Seen any good flags lately?
ALITO: OK, Beer Boy, enough with the flags. It’s not funny anymore. It stopped being funny a month ago. We’ve got bigger fish to fry.
ROBERTS: You’ve seen Smith’s filing.
ALITO: That little twerp. I thought he was on our side.
(Associate Justice Neil GORSUCH enters.)
GORSUCH: Hey, boys. What about that Smith filing, huh?
ROBERTS: We were just talking about that.
GORSUCH: Well, he’s right, you know. The Executive has no role in election administration. The phone calls, the coercion, the threats, the fake electors, the lies about voter fraud — none of those are official acts. If this goes to trial, Smith wins. Then Trumpie (raps knuckles on counter top with each word) pleads — to — us. We’d have to take it.
ALITO: Whose side are you on, anyway?
GORSUCH: I’m just saying.
ROBERTS: Well, we can’t let that happen.
KAVANAUGH: It’s not going to trial.
GORSUCH: Well, it could.
ALITO: It could. Caramella is doing a lot better than Trump says. She could win, the little …
ROBERTS: “Little” what?
ALITO: You know.
(Associate Justice Sonia SOTOMAYOR enters.)
SOTOMAYOR: G’morning, boys. Oh, good, a fresh pot. Mind if I …?
ROBERTS: Please, help yourself.
(SOTOMAYOR walks to the cabinet, takes out a cup. Pours coffee, then adds sugar and creamer. She takes a sip.)
SOTOMAYOR: Whoops. Made it a little too sweet.
(SOTOMAYOR pours some coffee into the sink, then pours more coffee into her cup. Sips.)
SOTOMAYOR: There, that’s better. So what are you boys talking about this morning?
(Simultaneously:)
ROBERTS: Nothing special.
KAVANAUGH: Baseball.
ALITO: The law.
GORSUCH: The weather.
SOTOMAYOR: (Smiles.) Um hmm. Well, have a good day.
(SOTOMAYOR exits.)
GORSUCH: So, look, if it comes to us, we just say that Smith is wrong and all of those private acts were really public acts. We just say it.
ROBERTS: And we lose our last shred of credibility. No one respects any decision we make. If Ms. Harris wins and has a cooperative Congress and we do that, they’ll write a new amendment and impeach half of us for sure.
KAVANAUGH: Oh, come on, that won’t happen.
ROBERTS: And a reality TV show star will never become president. Right? Right?
GORSUCH: OK, we can’t just say it. We need some credible argument to define his private acts as public acts. Just some loophole that allows us to justify a decision in his favor.
KAVANAUGH: Like with Roe.
GORSUCH: Yeah, like with Roe.
(Associate Justice Clarence THOMAS enters.)
ALL: Clarence!
ROBERTS: We’ve got a job for you!
THOMAS: Don’t worry about it. I’ve already got ten clerks working night and day to find a precedent.
(Stage goes dark.)
THE END.
…..
Extracurricular reading:
The Court finds a brand new presidential power:
https://www.npr.org/2024/07/01/nx-s1-5002157/supreme-court-trump-immunity
An unpopular decision:
https://news.yahoo.com/news/john-roberts-shocked-everyone-hates-143042797.html?fr=sycsrp_catchall
Roberts remains confounded by Trump:
https://www.cnn.com/2024/10/08/politics/john-roberts-donald-trump-biskupic/index.html
On a semi-related topic, President Biden regrets appointing Merrick Garland as attorney general, Bob Woodward writes:
But Biden won’t fire Garland, as Trump did his attorney general, Jeff Sessions:
https://www.bbc.com/news/world-us-canada-46132348
Because Biden understands that the attorney general works for the country, not the president.
That’s it for today. Enjoy this gorgeous weather!
Kudos, Mick. Loved your vignette.👍 As it happens, I’m in Philadelphia now visiting all the Founding sights. It is inspiring, but it also feels like a farewell to America. I am still hopeful we’ll have a 250th to celebrate. Keep up the good work. Visiting Carpenters Hall today where the First Continental Congress convened Sept 5-Oct 26, 1774. 💪