J.D. Vance -- asked on CNN why he attacks students who take over buildings, while defending the January 6 mob -- diminishes the attack on the Capitol. (Recall that amid chants of "Hang Mike Pence!" the Secret Service hustled the vice president out of harm's way.) The Ohio senator says, "I'm extremely skeptical that Mike Pence's life was ever in danger."
Philip Bump notes that maybe, had the chanting mob managed to come face to face with Pence, folks would have merely shouted insults or physically assaulted him, while sparing his life. But, adds Bump, this is "a bit like pointing out that Godzilla barely did any damage to Tokyo. Okay, but let’s not lose sight of the fact that a giant monster just emerged from the ocean."
That's the perfect analogy for the scene we witnessed at the Supreme Court a week earlier during oral arguments on Donald Trump's claims of presidential immunity, as five Republican men in robes hypothesized about (or explored) all manner of things, while relentlessly refusing to focus on the post-election conduct of the former president and current presidential candidate of the Republican Party (that is, on the actual case before them).
Let's review: Donald Trump lost the 2020 election to Joe Biden by more than 7 million votes. The Democrat won the Electoral College vote 306 to 232. Trump, however, was determined to overthrow the results of his electoral defeat. From the January 6 indictment brought by Jack Smith:
Despite having lost, the Defendant was determined to remain in power. So for more than two months following election day on November 3, 2020, the Defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won. These claims were false, and the Defendant knew that they were false. But the Defendant repeated and widely disseminated them anyway—to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.
Trump, the four-count indictment charges, sought to discount legitimate votes and subvert the election outcome by (1) conspiring to defraud the United States and prevent the lawful collecting, counting, and certification of the election results; (2) conspiring to corruptly obstruct an official proceeding; (3) attempting to and obstructing an official proceeding; and (4) conspiring to deny citizens their right to vote and to have their votes counted.
We witnessed much of this with our own eyes (from Trump’s tweet: "The BIG Protest Rally in Washington, D.C., will take place at 11.00 A.M. on January 6th. Locational details to follow. StopTheSteal!" to the chant of the crowd: “Hang Mike Pence! Hang Mike Pence! Hang Mike Pence!”), while there is ample additional evidence, including in Trump’s own words, that has been made public (“I just want to find 11,780 votes.” “Just say that the election was corrupt and leave the rest to me and the Republican congressmen.”).
Trump’s attorneys moved to have the indictment dismissed based on his unprecedented, unhistorical claim of presidential immunity. Judge Tanya Chutkan denied the motion to dismiss. The D.C. Circuit unanimously upheld her decision. The United States Supreme Court, agreeing to take the case, asked litigants to address this question: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
But the five Republican men evinced little interest in the question that the court had posed. As former judge J. Michael Luttig observed:
As with the three-hour argument in Trump v. Anderson, a disconcertingly precious little of the two-hour argument today was even devoted to the specific and only question presented for decision.
The Court and the parties discussed everything but the specific question presented.
That question is simply whether a former President of the United States may be prosecuted for attempting to remain in power notwithstanding the election of his successor by the American People, thereby also depriving his lawfully elected successor of the powers of the presidency to which that successor became entitled upon his rightful election by the American People -- and preventing the peaceful transfer of power for the first time in American history.
More than once when Michael Dreeben, the attorney representing the special counsel, mentioned the specific case, one of the Republican men brushed him off. For instance, Justice Kavanaugh: "I'm not talking about the present case. So, I'm talking about the future." And Justice Samuel Alito: "You know, I'm not -- as I said, I'm not discussing the particular facts of this case ...." The justices wanted to address hypothetical future scenarios that they spun. When Dreeben tried to interject that a hypothetical didn't apply to the current case, Justice Neil Gorsuch dismissed him: "I -- I -- I understand that. I appreciate that, but you also appreciate that we're writing a rule for the ages."
Uh-huh. Let me translate: Let's dodge the live issue, should this former president be held accountable for a conspiracy to overturn the election? Instead, we'll complicate things with fantastic hypotheticals. In the meantime, we'll enable Trump's delay-delay-delay strategy to ensure that no trial takes place before the 2024 election.
In contrast to this tact by the five Republican men, recall the Burger Court's unanimous ruling in Nixon v. United States (1974). There was an immediate issue to be decided; future cases with complications that couldn't be foreseen at the time could be left for another day. A grand rule for all time was unnecessary, delaying a decision of some urgency. And furthermore: had a grand rule been constructed, it would have been complex and clunky and almost certainly would have missed the mark, so that whenever another actual case presented itself in the future, the grand rule would have to be thrown out or refashioned.
In the following exchange (emblematic of the morning's explorations) with Dreeben, Alito suggests that a peaceful transition of power is required for a stable democratic society, then offers a gobsmacking hypothetical:
JUSTICE ALITO: All right. Let me end -- end with just a question about what is required for the functioning of stable democratic society, which is something that we all want. I'm sure you would agree with me that a stable democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office peacefully if that candidate is -- is the incumbent.
MR. DREEBEN: Of course.
JUSTICE ALITO: All right. Now, if a -- an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?
And we can look around the world and find countries where we have seen this process, where the loser gets thrown in jail.
Huh? This is analogous to rebuffing measures to protect the city from Godzilla because those protective measures (in a future possible hypothetical scenario) might rile up another gigantic sea creature prompting that creature to attack. (In this possible scenario, of course, we are imagining that in the absence of any protective measures, the second behemoth would be placid and friendly.) In other words, Alito's hypothetical suggests that holding a former president accountable for election subversion would make it more likely that future presidents would engage in election subversion. What a topsy-turvy notion of accountability and moral hazard.
From the last decade of the 18th century through the first two decades of the 21st, every president in the White House at the end of his term has consented to a peaceful transition of power. Except Donald Trump. But rather than focus on holding him accountable for this breach, the Republican men on the court sought to change the subject -- in this case, with a fanciful idea that expecting presidents to be accountable for their actions would do more harm than good, increasing the odds that a second president since our nation's founding would engage in felonious conduct to block the peaceful transition of power.
All five Republican men, declining to focus on the leader of their party, explored issues far afield of the events culminating in violence on January 6, and all seemed amenable to crafting (without the least textual evidence in the Constitution) some manner or other of presidential immunity. So what's going on?
Nina Totenberg, who has observed the court for decades, offers an answer. Before we get to that though, please note that in a previous post I highlighted the overreach of the Republican majority on the court for diverging from well-established conservative judicial principles in selecting cases. Although their decisions in these cases invariably advanced the agenda of the Republican Party, Totenberg declined to view the decisions as partisan. She insisted on "weird," though as I argued, Occam's razor favored partisan as the explanation. In this case too, she won't say partisan; instead, she says the five Republican men were moved by their "personal experiences."
Five of the six conservatives spent much of their lives as denizens of the Beltway. As young men, the five served in the White House and Justice Department, working for Republican presidents, often seeing their administrations as targets of unfair harassment by Democratic majorities in the House and Senate.
I can't argue with that. But let's rephrase it: all five of these men have been Republican operatives. That is, their professional careers have been tied for decades to the Republican Party. That's why they were chosen for the high court. And, though Totenberg might shrink from saying this, all five continue to act as Republican operatives. That's the current job description for every Republican nominee, screened by the Federalist Society, to the high court.
For more than half a century, the Supreme Court has been dominated by Republicans -- but a handful of the Republican justices were not sufficiently partisan for the leaders of the Republican Party. They were judicial conservatives who sometimes strayed from the GOP party line. Consider Roe v. Wade (1972) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) and a string of cases in between: the Supreme Court upheld the right to abortion, while the Republican Party disapproved. A number of Republican justices were too independent to be reliable partisans. And so the GOP began to demand more reliably partisan justices. By fair means and foul, they succeeded. Today the Supreme Court has a partisan Republican majority.
The dominant figure in the Republican Party, a man who has trashed norms that have preserved our democracy, praised and imitated authoritarians, and conspired to overturn an election that he lost, has asserted presidential immunity. He is the political Godzilla of contemporary American politics. And at least four Republican men on the court appear prepared to grant him a maximal victory in this case.
The fifth Republican man on the court, the chief justice, has been careful in the past to take two or three steps (rather than one) over a number of years to advance partisan decisions. He may balk at taking one big step this time. We'll see. He may attract one or two other Republicans to his side. We'll see.
We can be confident, though, that the court will fail to issue a unanimous decision as the Burger Court did forty-four years ago. Back then, a decision unblemished by partisanship was regarded as critical. Today, not so much. Not with this majority.
I know, I know. It was only oral arguments, not a decision handed down. But we've watched this court in action for a while now. Partisanship, not conservative judicial principles, or faithful adherence to, say, originalism or textualism, consistently rules the day with this crew. Trump is the undisputed leader of the Republican Party. These Republican justices will endeavor to protect him from accountability.
Count on it.