I was one of many Americans who breathed a huge sigh of relief on Thursday when the Supreme Court emphatically said, in two 7-2 decisions, that the President of the United States is not above the law.
The small-minded part of me found it particularly delicious that President Trump’s two appointees—Justices Gorsuch and Kavanaugh—voted with Chief Justice Roberts and the liberal minority in both instances.
After all, Trump had referred to his appointees as “his” justices; how dare they cross him like that! Justices who uphold settled law going back 250 years—it’s all a plot against him!
There’s a strong likelihood that we, the public, won’t get the information that the New York prosecutor and Congress have been seeking, which includes Trump’s tax returns, before the elections. But it’s still possible.
Neal Katyal, a law professor at Georgetown and former Acting US Solicitor General, has said it’s conceivable that Cyrus Vance Jr, the District Attorney of New York County, can move quickly enough to bring the case to a conclusion earlier than November. That would be wonderful.
But amid all the plaudits to the Court for showing that our system of checks and balances really works, and our democracy is secured, I was struck by the forceful clarity of an opposing view expressed by a lawyer friend in his private newsletter. (Emphases mine throughout.)
He called the very fact that the Supreme Court had accepted the cases at all “judicial malpractice.”
Here’s what he wrote:
“With glacial majesty, the Supreme Court issued two opinions on Thursday that broadly reaffirmed the fundamental tenets of separation of powers—tenets that were so obvious that any 6th-grade student of civics could have recited them by heart.
“But in taking its sweet time to affirm the obvious—that the president is not above the law—the Supreme Court failed the American people miserably. By moving with glacial speed, the Court granted Trump what he wanted most: avoiding accountability.”
After all, he noted, Trump and Attorney General Barr were declaring that the president had absolute immunity from subpoenas issued by both Congress and the District Attorney.
Therefore, my friend wrote:
“That risible assertion deserved a one-sentence summary disposition that said, ‘Review denied, produce your tax returns.’”
And if the Court had for its own reasons felt the need to restate settled precedent, he stressed that it could have expedited its review.
“To Court defenders who say that we must not rush justice, I say that I agree with you—except when the nation is in a moment of crisis. And we are.
“Trump is essentially an unindicted co-conspirator in the indictment that sent Michael Cohen to prison. That case implicates the integrity of the 2016 election. Cohen testified before Congress that Trump used tax fraud as the business strategy for the Trump Organization. The New York Times published an article that detailed a decades-long tax conspiracy by the Trump Organization.
“In short, there is ample evidence that our president has violated the civil and criminal laws of the United States. The proof is in his tax returns. Now, thanks to the Supreme Court, we will see those returns five years hence, when they will not help America determine whether its president is, in fact, a felon who has cheated the country he seeks to lead for another four years.”
My friend observed that the Court that moved so deliberately had previously granted 17 emergency stays that benefited Trump.
“Having shaken their listlessness on 17 occasions to protect Trump, the conservative majority is unwilling to rouse itself on this single occasion to protect the American people.”
He also terms Congress “the loser,” and takes Roberts to task for discussing an “interbranch conflict.” He doesn’t buy that argument at all:
“Oh, please! Trump is accused of committing tax fraud before he was elected to the presidency. His pre-presidential conduct does not implicate an ‘interbranch’ conflict. That theory is an artifice invented by Justice Roberts…”
Roberts’ opinion stated that:
“There is not always a clear line between the president’s personal and official affairs.”
But, said my friend,
“There is a clear line in this case between Trump’s personal and official affairs. Whether the real estate mogul Donald Trump committed bank fraud years before he was elected as president does not implicate his ‘official affairs’—and John Roberts cannot credibly contend otherwise.”
Still, my friend’s message isn’t without hope.
“To those who share my outrage that Trump has again seemed to evade justice, we should take a modicum of solace from these opinions. The State of New York will continue to investigate Trump and his family for tax fraud. Trump ultimately will be held to account. He cannot be pardoned for violations of state law.”
And though what follows wasn’t the conclusion to his newsletter, it seems an appropriate conclusion to this post:
“The Supreme Court is broken, and we must fix it by fortifying the Court with a new majority of jurists who do not see their job as protecting the president of the party that appointed them. It cannot happen soon enough. We must flip the Senate if we want to rehabilitate the Court. Tell your friends.”
What do you think? Are you pleased/relieved/disappointed/angered by the Court’s rulings? If so, why? And what do you think of my friend’s suggestion that we must “rehabilitate” the Court? Others have made that case, including Pete Buttigieg. I am open to discussion but unsure at this point.
If you’d like to subscribe to my friend’s free newsletter, go to https://tinyurl.com.TodaysEdition.
Annie
annieasksyou... 
Really interesting article on what I had perhaps naively supposed was a positive step forwards. I’m also awaiting your take on the Roger Stone news today. 😲
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Well, I was similarly naive, Matthew; that’s why I felt this point of view was so important to share.
As for Roger Stone: I’m gonna pass on that one. Just another ordinary outrage. I’ve really been trying not to write about or even speak about trump, but this issue begged for coverage. Always good to hear from you.
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I subscribed to your friend’s newsletter and I look forward to learning more. As a lawyer for nearly two decades, albeit not a constitutional scholar, I completely agree with your friend. It is my belief that the culture of bullying and tribalism has affected everyone, even those who are appointed for life and thus someone protected from backlash. I’m sad and my heart hurts that our system of checks and balances has been so perverted by men and women only out for themselves. It used to be that public service was a respected endeavor and I hold Trump personally responsible for moving the needle so far away from reality that no one knows what the truth actually is anymore. We are giving our children and grandchildren a shameful legacy in this country. Thanks for sharing and tackling such an important topic! ❤️
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I certainly agree.
We have to look ahead to what Joe Biden’s slogan says: Build Back Better. We have our work cut out for us, but as you suggest, we owe it to our children.
Do you have any thoughts about SC “rehabilitation” that you’d care to share?💕
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So far beyond my pay grade, my friend. I wish I knew of a solution. ❤️
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Thanks, Abigail. I just find you so wise and sensible that I was hoping you’d offer your sense of the appropriateness/feasibility. With no background entitling me to opine (!), I’m already thinking that any such plan—unless it went through the lengthy Constitutional Amendment route—would probably wind up before the Supreme Court—and that doesn’t sound very promising. Best to you!💕
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I tend to agree with you. Our legal system is so very complicated and slow. 🤦🏻♀️
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I think it’s interesting that expanding the court is even a topic of discussion. Shows how far from the mainstream it’s moved.
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Trump’s the worst. A despicable person that the American populace elected to office. His despicable-ness was totally apparent way before Election Day in 2016.
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I’ve noted before: the folks in NY, who knew him best, were very clear, but people were fixated on Hillary’s emails and didn’t listen. Very sad for our country/world.
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I agree with your friend’s observations. Too little, too late. But I can’t say that I expected anything other. My only hope, growing thinner and thinner, is that Justice Roberts will wake up one day and ask himself how he would like the Roberts Court to go down in history — Trump’s puppet, one among many /or/ integrity exercised? Thanks again, Annie, for a wonderful post.
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You’re most welcome. Want to weigh in on the idea of “rehabilitating” the court? Would love to hear your thought on that.
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Wonderful post. You asked if we wer e ‘pleased, relieved, angered, disappointed by the courts rulings.” I’m just going to say that I am all of the above.
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I think that makes perfect sense. In fact, I feel the same way!
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Wonderful post. You asked if we wer e ‘pleased, relieved, angered, disappointed by the courts rulings.” I’m just going to say that I am all of the above.
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Not the least of forebodings of another Trump term in office would be the likelihood that he’ll be able to appoint one or two more arch-conservative Supreme Court justices (liberals Ruth Bader Ginsberg is 87 and Stephen Breyer is 81). The other justices are a good bet to survive another 4+ years, so I see little chance of a change in the balance of the Court even if Trump is defeated.
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That’s why I found my friend’s views so interesting. He’s not at all a wild-eyed radical. I think McConnell’s theft of Merrick Garland’s seat will resonate if the Dems take back the Senate.
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About time. Too little too late but at least another small shift in what I hope becomes a landslide.
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That would be wonderful and is precisely what we need!
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There is an old saying in the law: Justice delayed is justice denied.
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Succinctly well put, Joseph.
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I wish people could read a court decision more broadly than the specific controversy involved. I don’t really like the decision either, but do you really want a right wing prosecutor in, say, what’s left of Oklahoma, to subpoena Joe Biden for personal records that relate to his long career? Do we want politically-minded state and local officials to have the power to “investigate” sitting a sitting President thus forcing him/her to maintain legal teams to defend against subpoena eruptions from all over? In this environment, I fear that this will be the new normal. Trump is only temporary. The office of the President is forever.
As for the new enthusiasm for Court-packing, I’m not a fan. There is already too much tendency for politics to overshadow law, and adding more judges for political purposes will make it worse.
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You know, this is an issue I have been grappling with. With all the trump calls to “lock her up,” and people rightly pointing out that such a concept is more suitable to a banana republic, I question how the next administration can fairly address the multitude of criminal activities post -trump. But they must because this kind of lawlessness cannot go unpunished. I hope there’s a way to do it that is truly nonpartisan—as many of the alleged “deep state” officials have been for their entire careers prior to trump.
I agree we must try to get even the appearance of politics out of Supreme Court appointees. Unfortunately, representation on the court has been a goal far more of the right for many years, with Mitch McConnell’s refusal to let Merrick Garland get a hearing—knowing the votes were there for his confirmation—a huge and appalling example. So I wouldn’t blame the Democrats for seeking some way to find greater equity.
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JP. To answer your questions. YES.If a local prosecutor has evidence of a crime by Joe Biden with specific testimony from witnesses and a grand jury indictment, YES. Because no one is above the law. In fact, President Clinton did agree to accept the responsibility of settling the Jones lawsuit while he sat as POTUS. Clinton also agreed that the POTUS must respond to a valid request during an investigation and sit, UNDER OATH, and testify. The 2 court decisions which Trump lost were cases in which he claimed that the POTUS was not required to follow the law by virtue of being POTUS. Neither POTUS, even Nixon, has ever tried to make that claim
You may be too young to recall the Clinton presidency. But Clinton fought off lawsuits and even the investigation by Ken Starr while sitting as president. When the Clintons left office they had massive legal debts, hence the astronomical speaking fees they required to help pay off those debts after leaving office.
The idea that the POTUS is not above the law is a fundamental building block of a democracy. The separation of powers demands that a Congress have the right to investigate not only for corruption, but also to design laws that help avoid corruption. If Congress cannot investigate a POTUS then, once again, we have lost democracy. Have you forgotten the 9 investigations into Benghazi? Was that a political hit job? Of course. But that is how the separation of powers works.If Hillary had committed any crimes she should have been indicted. But those 9 investigations showed she had not done so, no matter what the GOP “spin”.
When you say that investigating a sitting president is a “new normal” you are forgetting the normalization of legal attacks on Clinton during his presidency. Not new. And the legal system protects the POTUS the same as it does you and I. If there is no evidence, there can be no indictment.
President Obama had dozens of lawsuits directed against him when he was in office. Not a single one ever went anywhere because in the end they had no substance.
So, the idea that Trump is somehow unique in being sued or investigated while in office is just another example of fake news. Trump has been treated no differently than other presidents in recent times. A false narrative that he is somehow being picked on. In fact, he is likely indicted in NY as a co-conspirator with Cohen in NY. Based on evidence.
So, the SCOTUS decisions simply re-iterate that no one is supposed to be above the law.
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Joseph, thank you for providing this much-needed historical perspective.
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I just turned 61 years old, so certainly do recall the Clinton presidency. I am also a practicing litigation attorney, though I do not deal with constitutional law on a day to day basis. It is my understanding that whether a sitting president was subject to civil and/or criminal matters of State law was an open question until now – nobody has argued that the President is above the law, only that such matters are stayed during the term of service. Clinton elected to not press the point, but Trump did. That argument has now been made and has been decided.
You seem to have a great deal of faith in the idea that no prosecution will go anywhere without evidence. I do not share your sunny view of the justice system. For every intended consequence of any court ruling (or anything else, for that matter) there is at least one unintended consequence. Don’t be surprised when politically grandstanding local politicians find excuses to drum up grounds to pursue a sitting president of the opposite party with the real agenda of digging up dirt to defeat him in the next election. It is an old saying that hard cases make for bad law, and a corollary seems to be that cases involving Trump do as well. Passions have been on full boil for the last 4 years, and that is rarely a good environment for reasoned and reasonable decisions that set the rules for the future.
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Forgot to post the link: https://en.wikipedia.org/wiki/Barack_Obama_presidential_eligibility_litigation
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…and for this!
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Nice blog
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Thank you; I appreciate your feedback!
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