Sun, Apr

What if the Supreme Court were to say Yes to full Presidential Immunity?


GELFAND’S WORLD - A whimsical thought. Suppose the U.S. Supreme Court were to uphold Donald Trump's claim that every president has absolute immunity from criminal prosecution for anything he does while in office. What would stop Joe Biden -- on the very next day after the verdict comes down -- from having 4 Supreme Court justices arrested and held without bail? He would nail two of them for accepting bribes, and another two for perjuring themselves in their Senate confirmation hearings. Legal scholars would undoubtedly point out that such arrests are irregular, violating (as they would) pretty much every accepted legal safeguard. But that's not the question. It would be a question of raw power, not ethics or justice or even of law. But that raw power is, in fact, what Donald Trump is demanding from the court in his presidential immunity plea. 

The fact that the Supreme Court is even taking up the question shows how ethically and morally compromised it has become. 

And one other point: Reducing the court to a liberal majority (by those 4 arrests) would allow for rapidly revisiting every bad Supreme Court decision of the past 50 years. After reversing all those bad decisions, the new liberal majority could round out its work by reversing the decision granting presidential immunity. 

So maybe one or two conservative justices will recognize the dangers not only to the people, but to their comfortable way of life, in hazarding such a decision. 

It's a fun thought experiment, but I bring it up as part of a serious inquiry. The background to this question is that we have been going through a patch where the news media and the public have been focused on the primary elections, the State of the Union speech, and the ordinary run of campaigning. Biden's been up in the rust belt, and Trump has been talking blood and thunder in Dayton, Ohio. 

We've therefore gotten a little sidetracked from the other major topic: What's in store on the criminal trial front? You would think, based on the headlines, that Trump has just had an incredible streak of victories. After all, he did manage to stall things down in Atlanta by getting one of the lead prosecutors in his racketeering trial kicked out. And in New York City, he just got a 30-day postponement in his trial -- the one that the press loves to call the "hush money" trial. 

The latest postponement comes because the U.S. Attorney's office was a little slow in sending over a pile of documents, and this was enough to give Trump's lawyers an excuse to ask for a long delay. But the judge granted a mere 30 days starting from March 15 (apparently the day when the document dump became known). That means that the first Trump criminal trial could begin as soon as April 15. Perhaps a little later, but not necessarily much later. 

As long as we are speculating, we might consider the possibility that the Supreme Court will turn down the bulk of Trump's request regarding presidential immunity. At best for Trump (and worse for the rest of us), the justices may enunciate some three part test the way they like to do, and it will protect a president who is acting in good faith in carrying out his Constitutionally stated duties under Article II. The result would be to give Trump's lawyers another couple of months to stall the trial while they file dismissal motions that will inevitably get turned down. 

But in the meanwhile, we will have the spring and summer months of the 2024 presidential campaign season consumed with at least one of Trump's criminal trials. 

We can speculate all we like about what the end of April is going to be on the news front, but it all depends on whether that New York judge is going to put up with a new set of dilatory motions from the Trump camp. They will claim that all criminal trials have to be stayed until the Supreme Court decides on presidential immunity, to which the prosecution will answer, and we will have one more go-round. But we can anticipate that ultimately, whether it be April 15 or May 1, the first criminal trial of a former American president will commence. 

We've gotten used to the specter of Donald Trump holding a press conference each day after he has been in court, and in those press conferences attacking the character of the judge, the witnesses against him, and the prosecutor. I suspect that once a criminal trial gets underway, the judge will put a stop to much of this, as it would constitute an attempt to intimidate witnesses and to prejudice the jury. We will see a stronger sort of gag order. It should be an interesting Spring. 

Competing visions of politicking 

It's conventional wisdom that a candidate, upon wrapping up the nomination, should move towards the center. We've seen that with Joe Biden. He has staked out a middle position on the immigration issue by supporting the recent Senate bill. On the issue of the Gaza war, he has tried to fend off criticism from his left by taking a stern tone with the Netanyahu government. 

What of Donald Trump? 

Since Trump owns the right wing and can count on their support no matter what he says from now on, the conventional approach would be for him to move towards the center. He might take the advice of Richard Nixon, who pointed out that like a good shortstop, a president has to be able to go to his left. 

I'm not seeing this from Trump. The news from Dayton concentrated on Trump's remark that if he does not win, there will be a bloodbath. Trump apologists point out that he was talking about the economic risk of the car market being flooded by cheap Chinese imports. Perhaps that is the bloodbath that he was talking about. But the Trump supporters who invaded the Capitol on January 6, 2021 understand the term differently, and I suspect that the rest of us understood the bloodbath remark to be intended more broadly. 

Whatever Trump's intended strategy as presidential candidate might be, what we are hearing from him on the campaign trail is a continuation of the shrill, insulting, and downright threatening Donald we have seen before. 

And that brings us fill circle to the upcoming criminal trials. How will Donald Trump deal with a strict gag order during the several weeks of prime campaign season in which he will be expected to sit at the defense table? Irresistible force -- Donald Trump -- meet immovable object -- the judge. 

We are in for interesting times. 

(Bob Gelfand writes on science, culture, and politics for CityWatch. He can be reached at [email protected].)