Opinion: Supreme Court’s immunity decision makes a mockery of July 4

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Opinion: Supreme Court's immunity decision makes a mockery of July 4

Perhaps on this Fourth of July, the Alitos will fly the American flag properly, not upside down, at their Virginia or New Jersey homes.

It is after all the 248th anniversary of America’s founders declaring their independence from a king. But I’m guessing Samuel A. Alito Jr. and his flag-loving wife, Martha-Ann, are celebrating that he and his fellow right-wing Supreme Court justices have made a king of our presidents, just when it seems more likely that Donald Trump could be restored to the throne.

Opinion Columnist

Jackie Calmes

Jackie Calmes brings a critical eye to the national political scene. She has decades of experience covering the White House and Congress.

The court’s ruling Monday in the appropriately titled Trump vs. United States was a gift to the former president. Trump got just about everything he asked for despite the majority’s specious attempts to make it seem otherwise: absolute or presumed immunity for official acts, which the court defined in a way that could encompass much of what the Jan. 6 criminal indictment alleges the former president illegally did to overturn the 2020 election.

Also, the court’s delay — taking months to decide the case and, with its decision, imposing time-consuming pretrial proceedings to determine what is or isn’t covered by the court’s immunity notions — ensures that Trump will not be tried before the 2024 election for seeking to steal the previous one. The classified documents case in federal court in Florida, and the state case in Atlanta alleging Trump pressured Georgia officials to flip Joe Biden’s 2020 win there, both already slowed for various reasons, will be further sidetracked as the justices’ decision is parsed.

The ruling also threw into doubt Trump’s recent conviction in the only criminal trial he has faced, in Manhattan. On Tuesday, Judge Juan M. Merchan delayed Trump’s sentencing from next Thursday to Sept. 18 to weigh the ramifications. That case involved Trump’s personal acts in fraudulently reporting hush-money payments to a porn star before the 2016 election, so not an official presidential act. But his lawyers argue that some of the evidence that convicted Trump came from his time as president and thus should be off-limits, by the high court’s holding.

“In every use of official power, the President is now a king above the law,” Justice Sonia Sotomayor wrote in a fierce dissent for the court’s three liberals.

Happy Independence Day? Millions of us might be sorely tempted to fly our flags upside down in the universal sign of dire distress.

It was 50 years ago this month that a very different Supreme Court unanimously ruled in United States vs. Nixon (just 16 days after oral arguments in the case!) that President Nixon had to turn over Oval Office tapes to a special prosecutor. The recordings put him at the sordid center of the Watergate scandal and led to his resignation weeks later.

One phrase back then captured Americans’ bipartisan consensus about the role of the press, the Senate hearings, the House impeachment inquiry, a special prosecutor’s probe and the Supreme Court’s expedited decision: The system worked.

Never would I have imagined, as a college student who closely followed Watergate, that a half-century later another Supreme Court would upend the legal underpinning of U.S. vs. Nixon: that executive privilege must give way to “the fair administration of criminal justice.” In our time, the system — our leaders and institutions of government — has failed.

Remember that after the House of Representatives impeached Trump for provoking the Jan. 6 attack on the Capitol, Senate Republicans blocked his conviction because Trump had become a private citizen. Mitch McConnell, the Senate Republican leader, assured us that Trump could be answerable in another way: “We have a criminal justice system in this country…and former presidents are not immune from being held accountable.” Trump’s lawyers said the same during his Senate impeachment trial.

On Monday, the Supreme Court essentially told us otherwise.

This from a court with a Republican supermajority, including three justices picked by Trump under controversial circumstances, and two, Alito and Thomas, who’ve snubbed federal law by refusing to recuse themselves from Jan. 6-related cases despite their wives’ public displays of sympathy for, and in the case of Ginni Thomas, connivance with the “Stop the Steal” insurrection.

During Watergate, neither the Supreme Court nor anyone else thought former presidents had anything like the criminal immunity suggested by the Republican justices Monday. As Sotomayor noted, both President Ford’s pardon of Nixon and Nixon’s acceptance letter explicitly assumed that he was liable for, as Nixon wrote, “any charges which might be brought against me for actions taken during the time I was President.” Why else would there be a pardon?

The Watergate investigation delved into Nixon’s abuse of the Justice Department, the FBI, the IRS and the CIA to target his political enemies. Sound familiar? Yet today’s court says Trump’s scheming post-election contacts with Justice Department appointees are protected official acts. Never mind that he urged them to falsely claim election fraud in battleground states Biden won. “Just say the election was corrupt and leave the rest to me and the Republican congressmen,” Trump said in that “official act.”

He’s already given us reason to fear what he’ll do in a second term. Here’s one from the eve of the court’s ruling: Trump reposted on social media a call for Liz Cheney to be tried for treason in a televised military tribunal. Thanks to the Supreme Court he created, Trump in a second term could run amok with little fear of criminal accountability.

John Dean, who was Nixon’s White House counsel before he testified against him and went to prison for obstruction of justice, expressed his outrage at the decision by reviving an infamous Nixon quote: “‘When the president does it, that means that it is not illegal.’ Richard Nixon, 1974. Affirmed, US Supreme Court, 2024.”

I’ll let Dean have the last word.


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