THE BASELESS ATTACKS ON THE LEGITIMACY OF THE UNITED STATES SUPREME COURT CONTINUE—THE REPUBLIC UNDER SIEGE
OVERVIEW & INTRODUCTION
Not surprisingly, the New York Times on September 15th posited that Chief Justice Roberts put his thumb on the scale of justice by urging in a memo that the Court review cases that directly or indirectly would impact the pending criminal cases against former President Trump as well as the primaries. These included a review of a particular obstruction charge clearly inapplicable to many of the January 6th defendants, the immunity challenge to the Trump criminal cases, and, finally, the Colorado state case purporting to bar Trump from the Colorado ballot because of the Fourteenth Amendment’s Section 3 provision barring those who have engaged in “insurrection” from holding certain offices. The Colorado action was such a lawfare-guided misread of the text and policy underlying Section 3 that the Court reversed the actions of the Colorado Supreme Court by a 9-0 vote!!! Far from a gift to Trump, the Court simply stated what the law is and prevented the true threat to democracy presented when politically corrupted state legislators and courts usurped Section 3 in patchwork fashion from state to state, causing chaos. It is Congress that enforces Section 3 against federal officeholders, not the States. Clear as a bell and not Roberts seeking to help Trump. What nonsense.
This article will focus on the Trump immunity case, which, in fact, was nothing more than a continuation of jurisprudence going back to the Nixon and Clinton presidencies and a reassertion of the Article II powers of the executive and the central role of the separation of powers established by the Constitution. The lack of understanding of the basis for these rulings and constitutional design presented by the authors of this Times trash presents one of the most, if not the most, dangerous social contagions. That the Court is corrupt and not legitimate. The elevation of Harris to the White House coupled with a blue Congress will as Job One seek to dismantle a court that it believes existed to attempt to create a Trump monarchy. I posit that the system works as well as designed and forged, as the Court has time after time applied the principle first established in Marbury v. Madison, 1 Cranch. 137 (1803) that it is “emphatically the province and duty of the judicial department to say what the law is.” It is the Democrats stretching and misapplying the law to take Trump out of the political sphere and, in fact, jail him for protected acts that has led to the steps of the Supreme Court, not Justice Roberts putting his thumb on the scale. Ok, now to work.
THE HISTORY
In 1982, in Nixon v. Fitzgerald, 457 U.S. 731, the court (without any of the current justices sitting, but you knew that) considered and framed the issue of presidential immunity in the context of a civil suit against President Nixon over Fitzgerald’s dismissal from his position as an analyst in the Department of the Air Force. He claimed it was in retaliation for his testimony before Congress on C-5A cost overruns. He filed suit against by now the former President, and it worked its way up to the Supreme Court. In a 5-4 decision by Justice Powell, the following was noted:
“…Because of the singular importance of the President’s duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government. As is the case with prosecutors and judges—for whom absolute immunity is now established—a president must concern himself with matters likely to arouse the most intense feelings. Yet as our cases have recognized, it is in precisely such cases that there exists the greatest public interest in providing an official the maximum ability to deal fearlessly and impartially with the duties of his office…”
Fully implementing the intent of Article II of the Constitution, providing that “the executive power shall be vested in a President of the United States…” and recognizing that this grant of authority to that office entrusted the President as the chief constitutional officer of the Executive Branch with duties of utmost discretion and sensitivity, the Court further held:
“….In light of the special nature of the President’s office and constitutional functions, we think it is appropriate to recognize absolute Presidential immunity from damages liability for acts within the “outer perimeter” of his official responsibility.”
In 1997, the Supreme Court again considered the issue of presidential immunity, but in a very different context. Clinton v. Jones, 520 U.S. 681 That case arose from a civil suit wherein Paula Jones alleged that William Jefferson Clinton had, as Governor of Arkansas, allegedly (I believe every syllable of every word) directed an Arkansas State Trooper to invite her, then a state employee, to a suite at the Excelsior Hotel in Little Rock during a conference wherein he made “abhorrent” sexual advances to her. She rebuffed them. She further alleged that after Clinton was elected president, she was branded a liar publicly and suffered retaliation and humiliation. Remember that Harpy Hillary would never hesitate to destroy the reputations of women her husband preyed upon and abused for his own pleasure. Remember that Monica Lewinsky thing?
After he was elected president (because Ross Perot couldn’t keep his ears out of the race), she filed suit against him in federal court. Clinton quickly claimed that presidential immunity should keep the suit from progressing until after he left office. The Supreme Court reaffirmed the reasoning in Nixon v. Fitzgerald but declined to stay the case because this matter involved conduct that took place before he was elected and that the maintenance of the suit would not unduly distract him. It proceeded. In fact, his deposition, taken in that case, caused him to be fined and disbarred for lying and obstructing justice, and since the proceeding took place after he had his dalliance with Ms. Lewinsky, he further lied and obstructed a grand jury when his agreement with Ms. Lewinsky to lie about it was discovered. Certainly adultery before taking office and receipt of fellatio while performing official acts (he was on the phone lobbying a congressman) do not entail core executive functions. I suppose the Supreme Court never dreamed this can of worms would be opened by allowing the trial to proceed, but they presumed that President Clinton had character and might quietly settle the case rather than lie and obstruct justice as well as see an impeachment trial. I suspect lizardman James Carville had a hand in this destructive course, but perhaps he believed his hero.
THE PRESENT
I know I digress, but I have never sipped the Clinton Kool-aid. He was horrible, as history will someday have the honesty to state. The dot-com economic boom of the nineties would have even allowed a President Pee Wee Herman to be credited with the prosperity we all enjoyed.
Enter Trump, defeating Bill Clinton’s wife in 2016, running for a second term in 2020, and having the temerity to exercise his executive role in questioning some of the methodologies of that election that led to his narrow defeat by Biden despite receiving a record number of votes for any Republican candidate in history. The events of January 6th gave the Democrats a road map for unbridled lawfare against Trump, turning Jack Smith loose on everything from the classified documents indictment to a federal four-count indictment for obstructing the certification of the electoral college votes and a count about depriving the voters of civil rights or something ridiculous. The reader should note that Jack Smith, who would indict his mother if a Democrat told him to, did not and could not indict Trump for insurrection or seditious conspiracy because he had no probable cause, much less evidence to support that, especially since Trump urged the rallygoers to “peacefully and patriotically” protest.
The indictments were immediately challenged on the grounds of presidential immunity since Trump was allegedly acting within his core executive functions as set forth in Article II as well as his duty to take care that the laws be faithfully executed. Not surprisingly, the District Court in Washington, where Smith brought the indictment (where Trump got like no votes), as well as the Court of Appeals denied these motions, and the race to the trial was on. I was always puzzled by the fact that both courts ignored precedent and declared that Trump was acting as a candidate and not as a president when he took the actions he did on the advice of at least one constitutional scholar (John Eastman, not Rudy Giuliani). He was the executive branch charged with seeing to the integrity of an election for federal office. Given the fact that this was the first indictment of a former president for actions taken during the Presidency in our nation’s history, it is no surprise that the Supreme Court would, for the ages, and not for Trump, say what the law is. The ruling, which set forth different levels of actual and presumptive immunity, was borne of the precedential effect of the previous cases discussed herein, and the Court, by a 6-3 majority in Trump v. United States, 144 S.Ct. 2312 (2024), held:
- Under our structure of separated powers, the nature of presidential power entitles a former president to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority—the president’s exercise of his core constitutional powers confers absolute immunity.
- Congress cannot act on or criminalize such conduct, and the courts may not adjudicate such actions when undertaken in furtherance of such powers.
- For acts that are on the outer perimeter of such constitutional authority, the President enjoys presumptive immunity, that is, an immunity that safeguards the independence and vigor of his constitutional role but allows the Government to establish that applying a criminal prohibition would pose no dangers of intrusion on the authority and functions of the Executive Branch.
- For unofficial acts, there is no immunity at all.
The Court emphasized that its ruling was historic and for the ages by closing:
“This case poses a question of lasting significance: When may a former president be prosecuted for official acts taken during his presidency? In answering that question, unlike the political branches and the public at large, the Court cannot afford to fixate exclusively or even primarily on present exigencies. Enduring separation of powers principles guide our decision in this case. The President enjoys no immunity for his unofficial acts, and not everything a President does is official. The president is not above the law. But under our system of separated powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts. THAT IMMUNITY APPLIES TO ALL OCCUPANTS OF THE OVAL OFFICE.(Emphasis mine)”
CONCLUSION
Notwithstanding the foregoing and the previous holdings of the Court establishing constitutional principles attaching to the office of the Executive, separation of powers, and Article II, the Times and other “outlets” dedicated to the propaganda that the Court is corrupt and needs either packing or impeaching will continue to ignore the fact that this and the previous cases are rulings for the ages. Biden will act under its protections and pardon his son (and himself), and who knows what else and any future President can act in the Framer’s vision of the Presidency being occupied by a “vigorous” and “energetic” executive with “supervisory responsibilities of utmost discretion and sensitivity.” Chief Justice Roberts and a majority of the Court are saving us from the predations of a political class determined to use the institutions of this country to remove a perceived threat. That could happen on behalf of either party in some future scenario. Those actions violate the core principles of the republic, and again, the Court tells us what the law is and attempts to restore the delicate constitutional balance. A republic is great if you can keep it.
Mike Imprevento
September 2024
