We’re still catching up from last week’s earth-shaking news week on today’s BradCast, from the Supreme Court to our ever-worsening climate crisis. [Audio link to full show follows this summary.]
With understandable concerns about Joe Biden‘s candidacy following his debate performance almost two weeks ago, followed quickly by the July 4th holiday, I’m not sure that Americans yet fully appreciate the way in which our corrupted, extremist, radical, not-conservative-in-the-least U.S. Supreme Court has now upended the American experiment with its horrific, unjustifiable, anti-textualist, anti-originalist 6 to 3 ruling [PDF] last week on the previously unimaginable concept of “Presidential Immunity”.
In short, as Justice Sonia Sotomayor detailed in her scathing, 30-page dissent and point-by-point rebuttal and evisceration of the corrupt, activist majority’s ridiculous invention of a heretofore unknown “Presidential Immunity Clause” somehow hidden in the U.S. Constitution, the “decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.”
She describes, on behalf of her fellow liberal Justices, the majority’s opinion as “just as bad as it sounds,” describing it as “baseless” and “nonsensical”, in which “Argument by argument, the majority invests immunity through brute force.” It is “deeply wrong”, “illogical” and “unprecedented,” she warns, adding that it will “have disastrous consequences for the Presidency and for our democracy”.
Her dissent details how the Framers of the Constitution understood the concept of “immunity” quite well when adopting our founding document. They even gave a bit of it to the Legislative Branch, while denying same to the Executive, even as several state Constitutions had, by then, granted it to their own Governors. Nonetheless, “Relying on little more than its own misguided wisdom about the need for ‘bold and unhesitating action’ by the President, the Court gives former President Trump all the immunity he asked for and more.”
In doing so, with this decision and a number of other radical, not-conservative-in-the-least opinions at term’s end, the Roberts Court, according to today’s guest, has also given itself unheard of power, placing the Judicial Branch above its otherwise Constitutionally co-equal Legislative and Executive Branches.
We’re joined today by CHRIS GEIDNER, veteran legal journalist of LawDork to discuss that, and to help decipher whether this ruling is really “as bad as it sounds,” as Sotomayor charges.
Is a U.S. President — be it Donald Trump or anyone else — at this point, actually now immune from criminal prosecution should he or she orders Seal Team 6 to assassinate a political rival? (“Allowed,” says Geidner, according to “the plain text of the ruling.”) How about if they order the assassination of Justices on the U.S. Supreme Court? (“It is hard for me to read in the ruling where that is not allowed.”) How about if they sell Presidential Pardons for $1 million a pop? Would it really be “unconstitutional” now to bring criminal charges against a former President who asked his Secretary of Defense to “bring in the troops” to “shoot protesters…in the streets of our nation’s capital,” as Trump’s former SecDef Mark Esper alleged that Trump actually did in 2020?
The answer, it turns out — at least according to the ruling — is pretty much, yup, he (or she) would now be immune from criminal prosecution for all of those supposedly “official acts”. According to Geidner, however, those questions would ultimately need to be answered yet again by the Supreme Court. Depending on what the make-up of that Court looked like and, crucially, which party the President in question belonged to, their decisions might be very different on a case-by-case basis. It’s good to be King. But it might be even better to be a Justice in the Supreme Court majority.
“Let’s assume we get through this moment in time, relatively no more scathed than we already are,” Geidner posits, before predicting, “this is a ruling that is going to fall in on itself over time.”
“In the meantime,” as Sotomayor notes, “The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.”
“Moving forward, all former Presidents will be cloaked in such immunity,” she concludes. “If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.”
And finally, for those listeners who haven’t yet jumped out of a window, Desi Doyen joins us for our latest Green News Report after returning from our holiday break, with more deadly climate catastrophes and, yes, more horrific, history making opinions (Yay! More gifts for polluters!) from our fully corrupted, captured, activist and more powerful than ever rightwing SCOTUS majority…
Sounds like a diagnosis: The “It Can’t Happen Here” Trance.
Great post Brad.