Words alone don’t begin to describe the threats to come from court decision

Berl Falbaum
Veteran Political Journalist/Author

Scary, dangerous, perilous, alarming.

These are just some of the adjectives that come to mind in the signals given by justices on the Supreme Court after they recently held oral arguments on whether Donald Trump has immunity from alleged crimes he committed while president.

In one sense, Trump appears to have already won no matter how the case is ultimately decided because legal analysts seem to agree that the Court is inclined to send the case back to the U.S. Court of Appeals for the District of Columbia (D.C.) to work up a plan giving the former president some, if not total, immunity.

If that happens, the case probably will not go to trial before the November 5 election.  Then, if Trump wins the presidential election, he can order the Justice Department to drop two federal cases -- the one in D.C. for trying to overthrow the 2020 election and the other dealing with keeping classified documents in Florida. He has no power over a third indictment in Georgia where he faces state racketeering charges of allegedly trying to steal the election in the state.

So, the timeline, one of Trump’s major strategic and tactical objectives, is in his favor.  Consider: The Supreme Court will not make a decision until the end of its session in late June or early July. The D.C. appeals court will then take a month or two to implement the Supreme Court order. That will probably be appealed...

I think you get the picture.

And all of this is a surprise because the general expectation was the Supreme Court would support the decision by the D.C. Appeals Court which ruled unanimously in unequivocal language that Trump does not enjoy any immunity.

It would be a “striking paradox, if the president, who alone has the constitutional duty to ensure the law be faithfully executed were the sole officer capable of defying those laws with impunity,” the court stated.  It continued:

“We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter. Doing so would collapse our system of separated powers by placing the President beyond the reach of all three branches.”

Instead of embracing the decision, Chief Justice John Roberts blasted the ruling, stating, the appeals court didn’t lay out an adequate reason for why virtually all of Trump’s actions were subject to prosecution.

“As I read it, it says simply a former president can be prosecuted because he’s being prosecuted,” Roberts said. “Why shouldn’t we either send it back to the court of appeals or issue an opinion making clear that that’s not the law?”

During oral arguments justices, the conservative ones, joined Roberts in expressing skepticism about the decision as they posed questions to lawyers for the government fighting immunity and Trump’s attorneys who are seeking to protect the former president.

For instance, Justice Samuel A. Alito Jr., argued that immunity is needed to assure that an incumbent president has reason “to leave office peacefully after losing an election. “Will fearing prosecution,” Alito asked, “not lead us into a cycle that destabilizes the functioning of our country as a democracy?”

While Alito had some support from other conservatives on the bench, Justice Ketanji Jackson, posed the following question:  If immunity were granted, “wouldn’t there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they’re in office?”

 In response to hypotheticals, D. John Sauer, Trump’s lawyer, said a president could even order assassinations of political opponents or order the military to stage a coup and be immune from prosecution. Those, he said, could, “well be official act[s].” He did admit that the hypotheticals posed “sound very bad.”

Did I mention this was scary, dangerous, perilous and alarming?

Such constitutional protection would be perilous for a moral president. Think of what it would mean under a Trump presidency.

Let us not forget, Trump suggested that his vice president, Mike Pence, deserved to be hung -- as the insurrectionists demanded on January 6 -- for certifying the election.  Pence had no choice; the role of a vice president, any vice president under the constitution, is ceremonial. None can act independently and refuse certification.

Pamela Karlan, a law professor at Stanford University, said, as other constitutional scholars did, that the Supreme Court totally ignored the case before them, “averting their eyes from Mr. Trump’s conduct.”

If the case is sent back to the appeals court, Karlan said, that “could further delay the prospect of a trial, which means that whatever is ultimately decided about the scope and substance of presidential immunity, the court will have effectively immunized Donald Trump from criminal liability in this case.”

It may well be, she concluded, that “there won’t be a trial until sometime well into 2025, if then.”

Another point to remember, the Supreme Court received the case in February and could have decided it on an expedited basis. Instead, it scheduled oral arguments a full two months later.

As Robert C. Vogt, of Ann Arbor, pointed out in a New York Times letter to the editor: “It seems clear that David Pecker [former publisher of the National Enquirer] isn’t the only one running a ‘catch and kill’ scheme for Donald Trump.”

Add outrageous, scandalous, atrocious and heinous to the adjectives above.

Subscribe to the Legal News!
Full access to public notices, articles, columns, archives, statistics, calendar and more
Day Pass Only $4.95!
One-County $80/year
Three-County & Full Pass also available