With the clock ticking down, the most conservative of the nine supreme court justices appeared determined to talk about anything but the case at hand. “I’m not concerned about this case, so much as future ones,” said Neil Gorsuch, one of the three justices appointed to the supreme court by Trump.
What the justices appeared to be overlooking in the rush towards abstraction was that the actual substance of the case – the here and now – is of monumental significance. Trump is charged with having orchestrated a conspiracy to subvert the bedrock of democracy – the outcome of a freely held election – as the first president in US history to resist the peaceful handover of power.
As Michael Dreeben, who spoke for the government, put it, Trump’s novel legal theory that he enjoys absolute immunity from criminal liability would immunize any president who commits bribery, treason, sedition and murder. Or in Trump’s case, “conspiring to use fraud to overturn the results of an election and perpetuate himself in power”. At times the epic debate, which lasted two hours and 40 minutes, strayed into the surreal. Trump’s lawyer, John Sauer, argued that a president who ordered the assassination of a political rival or who instigated a military coup could only be prosecuted if he had been impeached and convicted first by Congress.
The award for the most jaw-dropping display of jurisprudential sleight of hand goes to Alito. He invoked the goal of preserving a “stable democratic society” in support of Trump’s claim that he should be immune from prosecution for having attempted to destroy a stable democratic society. “If an incumbent who loses a very close hotly contested election knows that it is a real possibility after leaving office that he may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country?” Alito asked.
“I think it’s exactly the opposite, Justice Alito,” Dreeben replied, with admirable restraint.
How the court will rule is less than clear. It is a fair bet that four of the conservatives – Alito, Gorsuch, Kavanaugh and Thomas – will vote for an outcome that in some form spares Trump from facing a jury in DC before he faces the American electorate on 5 November. The final word may well fall – once again – to John Roberts, the chief justice. The thrust of his questioning (he alluded to one-legged stools and got stuck on the word “tautology”) suggested that he might be tempted to remand the case back to a lower court for further time-consuming deliberation.
Analysis@the Guardian
"Embrace the insanity."
What the justices appeared to be overlooking in the rush towards abstraction was that the actual substance of the case – the here and now – is of monumental significance. Trump is charged with having orchestrated a conspiracy to subvert the bedrock of democracy – the outcome of a freely held election – as the first president in US history to resist the peaceful handover of power.
As Michael Dreeben, who spoke for the government, put it, Trump’s novel legal theory that he enjoys absolute immunity from criminal liability would immunize any president who commits bribery, treason, sedition and murder. Or in Trump’s case, “conspiring to use fraud to overturn the results of an election and perpetuate himself in power”. At times the epic debate, which lasted two hours and 40 minutes, strayed into the surreal. Trump’s lawyer, John Sauer, argued that a president who ordered the assassination of a political rival or who instigated a military coup could only be prosecuted if he had been impeached and convicted first by Congress.
The award for the most jaw-dropping display of jurisprudential sleight of hand goes to Alito. He invoked the goal of preserving a “stable democratic society” in support of Trump’s claim that he should be immune from prosecution for having attempted to destroy a stable democratic society. “If an incumbent who loses a very close hotly contested election knows that it is a real possibility after leaving office that he may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country?” Alito asked.
“I think it’s exactly the opposite, Justice Alito,” Dreeben replied, with admirable restraint.
How the court will rule is less than clear. It is a fair bet that four of the conservatives – Alito, Gorsuch, Kavanaugh and Thomas – will vote for an outcome that in some form spares Trump from facing a jury in DC before he faces the American electorate on 5 November. The final word may well fall – once again – to John Roberts, the chief justice. The thrust of his questioning (he alluded to one-legged stools and got stuck on the word “tautology”) suggested that he might be tempted to remand the case back to a lower court for further time-consuming deliberation.
Analysis@the Guardian
"Embrace the insanity."
