The oral argument before the Supreme Court about Trump’s claim of immunity from prosecution for inciting an insurrection was a farce and a ruse.
A farce because the Republican appointees to the court suggested that presidents have some level of immunity — certainly for official actions well within the duties of the office. But this case clearly isn’t about official action within the duties of the office. This case is whether presidents have immunity for instigating an insurrection seeking to overturn the results of an election.
No matter. The Republican appointees to the court then explored how to decide which actions are official and which are purely private.
It was a ruse because the Republican appointees to the court know full well that if they return the immunity case to the lower courts to decide whether instigating an insurrection is within the official duties of a president, and whether a test should consider Trump’s motives or purely objective facts, they’ll delay the underlying case so long that it won’t be tried before the election. This would give Trump the opportunity, if elected, to appoint as attorney general a loyalist who will drop the charges against him.
Justice Samuel Alito — the most dangerous and deceitful Republican appointee on the court (he wrote the Dobbs decision, brazenly reversing Roe v. Wade) — said 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.”
True. But then Alito had the chutzpah to claim that if a president thought he might be prosecuted for whatever he did to cling to office — including inciting a riot at the U.S. Capitol — he would likely keep clinging by any means possible. Ergo, according to Alito’s upside-down logic, the possibility of post-presidential prosecution could “lead us into a cycle that destabilizes the functioning of our country as a democracy.”
Hello? Surely Trump’s insurrection destabilized American democracy more than special prosector Jack Smith’s attempt to hold Trump accountable for it.
The case before the justices is whether inciting an insurrection is a prosecutable offense. Of course it is. By blowing it up into something else, the Republican justices are blowing up Trump’s trial — which is exactly their intention.
Meanwhile, House Speaker Mike Johnson visited Columbia University yesterday and demanded that President Biden call in the National Guard to college campuses to quell mass protests over the Israel-Hamas war.
Johnson called the protests “dangerous,” and warned that “if this is not contained quickly and if these threats and intimidation are not stopped, there is an appropriate time for the National Guard.”
Rubbish. Failure to hold accountable a president who instigated a violent insurrection is dangerous to the future stability of American democracy. Peaceful protests on college campuses about America’s complicity in the deaths of tens of thousands of Palestinian civilians in Gaza reflect the strength of American democracy.
This article was published at Robert Reich's Substack
