What a Supreme Court Ruling That Was!

For Performative Patriotism Day, the Court gave us a king

The Supreme Court of the United States has ruled, along party lines, that the President of the United States is immune from criminal prosecution for crimes they commit during the use of their “core powers,” and presumptively immune from criminal prosecution for crimes done through other “official acts.”

As the dissent points out, “When [the President] uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. 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… In every use of official power, the President is now a king above the law.”

The legal community appears to be nearly unanimously opposed to the ruling. I’d expect an open letter by dozens of constitutional scholars to come out in the coming days, condemning the ruling as one of the Supreme Court’s worst ever.

Predictably, the political community is split down partisan lines.

The pressing questions, though, have been “How could the Court have issued such a ruling?” and “What the **** was going through their minds?”

The answer is simple: Six justices on the Supreme Court live in the Right Wing Alternative Reality, where alternative facts create real concerns. According to Trump and the right wing media ecosystem, the concern in this case was that Trump and future presidents would be at risk of political persecution for doing nothing wrong.

The Supreme Court either bought into that narrative and took action, or just used it to justify doing what it was already going to do.

Right-Wing Media: Prosecuting Trump is Political

Fox News and its right wing progeny outlets have long presented every legal claim, both civil and criminal, against Donald J. Trump as being political, fake, or both. Just look at how Fox reacted to Trump’s guilty verdict:

The goal was to create a culture that was concerned with outgoing presidents getting prosecuted for acts done in office. Not for crimes done in office. Acts. Because in the Right Wing Alternative Reality, Democrats have weaponized the justice system and are using it to prosecute their opponents, so all acts must be protected. The only evidence that the right wing media has of this weaponization of the justice system is that Trump is getting prosecuted. There is no room in this Alternative Reality for the fact that enough evidence about these crimes has been found to persuade grand juries that there was probable cause to believe that they occurred, and to persuade one trial jury that it was beyond a reasonable doubt that 34 felonies had occurred. So these details are dismissed as “fake news” and “liberal bias.”

The Supreme Court’s Decision is All About Enabling Executive Action

It is those real concerns, at home to only the Right Wing Alternative Reality, that are behind the Supreme Court’s ruling.

If you read the 119-page ruling, you’ll find the six Republican justices in the majority fixating on the problem of having a President “unable to boldly and fearlessly carry out his duties for fear that he may be [prosecuted].” As if no president can possibly do anything without violating the criminal law. As if every single one of the 45 U.S. presidents has been prosecuted for his conduct in office when, in fact, that number is only one, and only recently. As if the criminal justice system doesn’t already have an element in place specifically designed to prevent political prosecutions – the grand jury:

“The common law grand jury is said to constitute both ‘the shield and the sword’ of the American criminal justice process. It is likened to a shield in its performance as a screening agency interposed between the government and the individual. In deciding whether to issue an indictment, the grand jury reviews the government’s evidence and, in effect, screens the prosecutor’s decision to charge. By refusing to indict when the evidence is insufficient or the prosecution otherwise appears unjust, the grand jury is said to ‘function as a shield, standing between the accuser and the accused, protecting the individual citizen against oppressive and unfounded government prosecution.’”

Source, page 399-400 (it functions as a “sword” through its investigative abilities)

With the grand jury in place, there is, simply put, no cause for concern about political criminal prosecutions of outgoing presidents…

Unless you live in the Right Wing Alternative Reality, where the Democrats are abusing the levers of law enforcement, and you ignore the role of the grand jury. Or you confront the grand jury bit with the old adage, “bUt aNy prOseCUTEr cAn inDICt a hAm sANDwiCH” and ignore the fact that the adage isn’t about political prosecutions. Grand juries indict if they think there’s probable cause to believe a crime has occurred. When the crime actually happened, this is really easy. When the prosecution is political and the prosecutor is making everything up, this is really difficult.

So, the Supreme Court has either forgotten how grand juries work, or they’re using the right wing narrative about what is really afoot in this case to produce the outcome that they wanted: An expansive and unaccountable executive branch.

I.e., a king.

We’ve already seen this fabrication of reality before in this Court. In Kennedy v. Bremerton School District, the Supreme Court cherry-picked so many facts from the case and ignored so many others that it turned the case from one about the Establishment Clause into one about the Free Exercise Clause, and then used that to promote the right wing policy of injecting schools with Christianity.

My biggest disappointment is Chief Justice Roberts. He could have been in the dissent to make it 5-4 and less obviously a political outcome. Instead, he wrote the majority opinion so that Trump’s three appointees and the two justices currently being scrutinized for their connections with the Trump administration didn’t have to. Ironically, as Roberts dipped his pen in the ink, his thoughts must have been, “If I write it, it’ll have more legitimacy and protect this Court’s credibility.”

Want Proof? Look at the Partisan Reactions

But don’t take my word for how reality’s schism created a king just before we celebrate overthrowing one: Look at how the partisans have reacted to it.

“The framers of the Constitution envisioned a democracy governed by the rule of law and the consent of the American people. They did not intend for our nation to be ruled by a king or monarch who could act with absolute impunity.” – Hakeem Jeffries (D-NY)

“Hyper-partisan prosecutors like Jack Smith cannot weaponize the rule of law to go after the administration's chief political rival, and we hope that the left will stop its attacks on President Trump and uphold democratic norms.” – Gym Jordan (R-OH)

“This is a sad day for America and a sad day for our democracy. The very basis of our judicial system is that no one is above the law. Treason or incitement of an insurrection should not be considered a core constitutional power afforded to a president.” – Chuck Schumer (D-NY)

“The Democrats have proven they will do everything in their power - including weaponizing our justice system - to destroy their top political opponent, Donald Trump. Today's Supreme Court decision is a positive step in the right direction of ending their senseless lawfare.” – Tom Emmer (R-MN)

“It is obvious the politically motivated Biden Justice Department's desire to put President Trump on trial in an election year was making a mockery of justice. The Supreme Court has rightly jumped in and laid out the constitutional and fairness questions at stake.” – Jason Smith (R-MO)

We live in different worlds.

The Stakes Somehow Got Higher, and Biden Won’t Take “Official Action”

The fallout is obvious: If reelected, Trump will crime with all the power of the federal government and the military. He will only leave office when his soul leaves his body. The only question is whether he will stop at his political opponents. Stormy Daniels? E. Jean Carroll? Mike Pence? People who criticize him?

But he needs to get reelected. For four months, Joseph Robinette Biden Jr. is the President of the United States. For four months, Biden has the power to take “official acts” with impunity, up to, and including, Seal Team Sixing his adversary.

Biden and the Democrats, however, won’t act on this opportunity during this limited window of time. Biden has already indicated that he’s going to take the high road. Republicans are so confident that Biden and Democrats won’t abuse their new power that they don’t seem to have even considered it as a possibility just yet.

It’s a crying shame.

In the face of a rising right wing that is based on white supremacy, the Great Replacement Theory, and an anti-immigrant rhetoric that has taken on genocidal tones, and a right wing leader who promises to only be a dictator for a day but with backers already prepping to purge the government so it can filled with stooges who would push for a new American Revolution, Biden is too soft to do what the Supreme Court has just given him the power to do.

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