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.