Monday, July 1, 2024

It appears we are properly f*cked

The Presidential immunity ruling by the Supreme Court is in.  

In her prescient 1993 novel Parable of the Sower, Octavia Butler tried to warn us of the future she saw us rushing inexorably toward.

Today, in a 6-3 decision, with Justices Sotomayor, Kagan, and Jackson dissenting, the Roberts court ruled that presidential immunity from criminal prosecution for official acts is "absolute." They declined to decide what constituted official acts in connection to the January 6 insurrection, however, instead sending that back to the D.C. District Court to be decided within the guardrails the decision outlined, including the edict that private communications by the president that include references to his core constitutional powers must be excluded from consideration.

So if Trump consulted with the Justice Department on how to throw the election to himself or do some other nefarious thing, even and up to assassinating a political rival, that would be excluded because a president consulting with Justice Department is an official act. And of course, every action related to January 6 that the district court rules to not fall under the umbrella of official conduct will be appealed ad nauseam, so the litigation will go on forever.  Trump will never be held accountable.

Chief Justice Roberts basically wrote the decision to gut all the criminal cases against Trump, but especially Jack Smith's January 6 case. For example, Trump’s speech at the Ellipse exhorting people to go to the Capitol and "fight like hell" to shut down the certification of the 2020 election by Vice President Pence and Congress must be excluded from evidence, because that speech was given in Trump's official capacity as president.

It gets worse with almost every sentence the Chief Justice wrote. “In dividing official from unofficial acts, courts may not consider the president’s motives,” he opined. Does this mean Trump can now appeal the New York hush money 34-count conviction because some of the evidence introduced might now be considered official acts, like his conversations with White House staffer Hope Hicks? And what does it really mean that in both official and private acts the president's motives cannot be considered? The whole New York hush money case turned on his criminal motives!

The Supreme Court's six conservatives have essentially created an imperial presidency. Can you imagine what Trump will do under cover of this ruling if he wins in November?

Justice Sotomayor wrote the 3-person dissent, joined by Justices Kagan and Jackson, with Justice Jackson also writing her own dissent. 


From Justice Sotomayor's powerful dissent:


Justice Sotomayor further elucidated the dangers of "absolute" presidential immunity from criminal prosecution for so called "official acts":

Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune...

Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. 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.

With fear for our democracy, I dissent.


Justice Jackson's dissent was also much quoted in news reports:

Justice Jackson, a brilliant and deeply moral jurist, was appointed to the Supreme Court at perhaps the most nakedly political moment in its 233-year history, and yet I continue to be grateful for her strong principled voice, and that of the Court's two other progressive women, going on the record with their sharply reasoned and blistering dissents.

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