In my last post, A Time For Choosing, I attempted to highlight what was at stake in the 2024 election – a continuation of the core values upon which our country was founded, or in the alternative the embrace of something darker, more sinister.
At its heart, the upcoming election is an inflection point in our history that will either ensure the continuation of our imperfect democracy, or whether we will embark on the road to an illiberal, unfree, authoritarian political structure.
In 1776, in his pamphlet Common Sense, Thomas Paine wrote:
“For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.”
We look to the law to establish rules by which we live peacefully, provide a system of punishment for those who would violate those rules, and with providing a forum to peacefully resolve disputes. In our democracy, we voluntarily consent to those laws because we each had an indirect voice in making those laws.
In liberal democracies, governments enact and enforce laws to safeguard our liberty interests. As I’ve previously written, our country was founded on the belief that all of us are equal, born with certain inalienable rights. This is key; governments do not grant us a specific right, it discovers or acknowledges rights that we already have.
In more authoritarian societies, governments enact laws and implement policies safeguard governing interests, with nary a care for safeguarding our individual or collective liberty interests.
In liberal free republics, we are (at least theoretically) equal. While the ideal has often been at odds with the practical application of that ideal, we strive to at least get closer to the ideal of equality. And while we have made progress since our inception, only a fool would ignore that we have a long way to go.
In illiberal authoritarian regimes, as history has more than taught us, the interest of the individual is subordinate to that of the state. The primary interest of these regimes is order and stability, both achieved by a strong central government. The societal values are those of the ruling elites.
To illustrate the practical difference between the liberal and illiberal governing systems, at least in the application of the law, the following court cases are relevant.
In 1965, the United States Supreme Court (SCOTUS/the Court) decided the case Griswald v. Connecticut, where the Court found that each of us had a right to privacy, particularly regarding the most sensitive and important aspects of our lives. The matter before the Court involved, but was not limited to, the dissemination of birth control information to married couples.
Almost eight years later, in 1973, SCOTUS decided Roe v. Wade, which held that a woman had near plenary agency over her reproductive health, including the termination of a pregnancy. The Court held that this was an individual privacy issue consistent with the holding in Griswald.
Then in 2022, in the case of Dobbs v. Jackson Women’s Health Center, SCOTUS held that under the Constitution, women did not have a liberty interest in deciding issues impacting their reproduction health. To put it bluntly, although each of us is “equal” and possesses “inalienable rights,” men have a full privacy right in their reproductive health decisions, but women have no similar right.
This was straight out of Orwell: all humans are equal, but some humans are more equal than others.
I’ve previously written about this decision and others handed down in 2022 on my blog.
By taking away women’s right to privately decide whether to carry a pregnancy to term, SCOTUS determined that Roe improvidently expanded the right to privacy “granted” in Griswald to women in making their own health decisions – thus this right was “taken” away.
This is punkin’ the law. Not only was a predetermined right taken away, but the reliability and stability of the law was cast aside to achieve a preordained goal.
Recall the testimonies of then nominees Gorsuch, Kavanaugh, and Coney-Barrett submitted to the Senate Judiciary Committee during their respective confirmation hearings. In answer to a question about their thoughts on Roe, each one stated that that they wouldn’t answer hypothetical questions and nearly sang hosannas the the legal concept of stare decisis – i.e. stand by the thing decided, in other words precedent. And when the Dobbs opinion came down, all three formed the majority overturning Roe.
To further compound the upheaval in women’s reproductive health, Dobbs held that each state could provide or withhold a right to a woman to obtain an abortion, whether it be an elective decision on the part of the woman, or whether it’s a necessary medical intervention to safeguard a woman’s life.
As of August 23, 2024, 14 states have strict bans on abortion for any reason, elective or medical. An additional seven states have bans ranging from 6 to 15 weeks. Some of these states have criminalized traveling out-of-state to obtain an abortion.
I don’t wanna start nuthin’…but although these states no longer have to respect a woman’s autonomy over her body, and in their attempt to criminalize going out-of-state to obtain an abortion, they might run afoul of her recognized right to interstate travel.
Today, some of the 21 states limiting or prohibiting an abortion will also hold others criminally liable for aiding a woman in her interstate travels, whether that aid is financial or directly participative.
In Edwards v. California (1941), SCOTUS held that it was unconstitutional under Art.I, s.8 (the Commerce Clause) for a state to prevent a person from traveling to another state to receive a tangible benefit.
Dobbs directly and indirectly affected two protected rights. You’ve got to love Dobbs’ author, nSam “The Sham” Alito!
So today, 237 years since the drafting of the Constitution, a document written on the basis that each of us was endowed with a panoply of rights granted under natural law, and that it was a prime governmental function to enhance and protect those rights, we now have 50 states determining whether to grant or deny a right impacting a person’s most personal and private area of her life.
This is what punkin’ the law looks like. Under the guise of respectability, the current Court has stripped away rights from more than one-half of our population. In short, it has deceived women that the right they thought they had really didn’t exist. Half of our population got punked.
Actually, if we count the impact on interstate travel, it’s a twofer punkin’.
So, you might be wondering “what about the rest of us, when do we get punked?” Have no fear, we already have been punked.
This year, on July 1, the very last day of its term, the Court released its opinion in Trump v. United States, aka the immunity decision.
Remember when all humans were equal before the law? Well, save for one, theoretically we still are. That one is the President of the United States (POTUS). It seems he, or one day she, can avoid legal responsibility for any act committed under his “exclusive/preclusive” powers or those on the “outer perimeter” of those powers.
This jargon sounds impressive so a couple of examples: the pardon power, appointing/discharging “advisors,” conversing with other executive branch officials are a few examples of exclusive/preclusive powers; public speeches and appearances are considered “outer perimeter” powers. The acts performed within his exclusive/preclusive powers are immune, period. The exercise of outer perimeter powers is presumed immune but is a rebuttable presumption.
Without going into great detail, this case centers around an indictment against Donald Trump charging him with four felony counts of conspiracy with unnamed others to interfere with the certification of the 2020 presidential election. This indictment alleged that Trump interacted with public officials and private actors to advance his scheme.
Special Counsel Jack Smith obtained this indictment from a grand jury and filed it with the Federal District Court for the District of Columbia. Appearing before the district court, Trump’s attorneys argued that as president he had complete immunity from criminal prosecution for any act he committed while president. The District Court judge disagreed, and the Circuit Court of Appeals for the District of Columbia upheld the District Court.
On to the Supremes they went. After an excruciatingly long five months, the Court in an opinion authored by Chief Justice John Roberts, rendered an opinion that overturned the lower courts’ opinions. The Court held that the president has immunity for his official acts, but not for any “personal” act he performs during his presidency.
Trump got 90% of what he wanted.
For reasons below, we can call this a slam punk!
How did the Court get to this analysis of immune powers? Damned if I know, and I’ve read it, reread, reread, and reread it yet again. I have to say that as a well thought out and reasoned legal opinion, this is right down there with Dobbs.
Fractured and cherry-picked history, misplaced “precedents,” and even saying that the Department of Justice agreed in part, I can only echo Justice Sotomayor when in her dissent she wrote “With fear for our democracy, I dissent.” Me too.
At the heart of its majority opinion, the Court didn’t want Donald Trump to be prosecuted for his alleged criminal acts. That’s really it. Period. There’s a little razzle dazzle that’s involved in misapplying the paucity of precedent to the case before it in a misguided effort to put some legal gloss on it.
In one instance, Roberts blatantly misquoted a precedent on which his opinion gave great weight. In Nixon v. Fitzgerald (1982), the Court wrote: “A court, before exercising jurisdiction, must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the executive branch.”
This balancing test was devised for a court to determine a president’s immunity in a civil action brought against him.
In Trump v. United States, Roberts in quoting Nixon wrote: “the president must therefore be immune from prosecution for an official act unless the government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the executive branch.’”
No “dangers,” an impossible standard to meet. The president “must therefor be immune from prosecution…” Moreover, it was not the standard in Nixon.
Roberts couldn’t have used the Nixon balancing test because it would tip the balance toward the prosecution and away from Trump. That’s why he had to bastardize the holding of Nixon and concoct the language supporting his predetermined opinion.
Understand, Nixon was a civil case brought by a guy who claimed he was wrongfully discharged from his government job. On the one hand, Roberts uses Nixon as a Rosetta Stone to decipher the scope of presidential immunity when it suits him, and then misuses and misquotes Nixon when that suits his purpose.
There was a lot of hand wringing and navel gazing about the specter of a prosecution for criminal liability impeding the president in performing his duties. All of it is conjectural and has little if anything to do with the serious charges brought against Trump.
When it comes down to it, Roberts is no umpire calling balls and strikes as he claims. He’s a player in the game.
Was this the only slight of hand tried by Roberts? No. To buttress the misquoted assertion from Nixon, Roberts cites Hamilton’s Federalist 69 which argues for a robust and unfettered president being able to perform his constitutional duties.
Unsurprisingly, Roberts overlooked Hamilton’s Federalist 68 that informed the reading public in 1788 as well as now, that a president could be held criminally liable for any acts he committed. The nation in 1788 had experience with a sovereign who was legally above the law.
John Roberts claims to be an originalist discovering and applying what the Constitution’s framers intended. Yet like other opinions handed down by this Court over the past few years, there is scant if any application of constitutional provisions or the framers’ intent supporting this opinion handed down by a 6-3 majority of this Court.
In short, John Roberts is no John Marshall.
Out of that word salad of legal “reasoning,” the Court produced the immunity of presidential actions described above. Heading off the obvious, the Court held that no prosecutor could investigate a president’s intent or motive. Mens rea is a threshold element to any charged crime. If a prosecutor can’t prove a criminal defendant had the requisite mens rea to commit a criminal act, then the case would be dismissed before it ever got to a jury.
And that is a president’s “Get out of jail free” card.
That’s a double slam punk.
The Court did say that a president could be criminally liable for his own personal conduct. What the Court didn’t do was give instructions as to how to tell the difference between conduct of a president acting pursuant to his constitutional powers and a guy who just so happens to be president acting in his personal capacity.
In order to determine presidential from personal conduct, the Court remanded the case to the District Court for action “consistent with this opinion.” In order to facilitate the next round of expected appeals, Special Counsel Smith has already obtained a superseding indictment that omitted some of the obvious “presidential” conduct that the Court had already determined to be immune.
For example, the original indictment charged Trump and an unnamed co-conspirator, a Department of Justice official (Jeffrey Clark), to use his office (elevation to Acting Attorney General) to write the certain states (e.g., Michigan, Wisconsin) telling them not to certify their electors because the DOJ was investigating (no) evidence of election fraud.
In other words, under this alleged scheme, the president would have used the good offices of his government to bluff the states into derailing the peaceful transfer of power.
Let me say here that we don’t know whether Donald Trump conspired with Assistant Attorney General for Environmental And Natural Resources Division Jeffery Clark to elevate Clark to Acting Attorney General so that Clark could write letters to specific states falsely claiming that Justice was investigating evidence of election fraud.
And thanks to the Court’s opinion, we never will. In keeping with the Court’s mandate, Special Counsel Smith dropped that charge from the superseding indictment.
We have yet to determine how to separate presidential from personal acts. As the Court pointed out, a president has a right to consult with any member of his government about any public matter. Because such conversations, irrespective of their content, are within the “exclusive/preclusive” presidential powers under Article II they are thus immune.
Under the Court’s ruling, there isn’t any hope of investigating a president’s intent in having such conversions. It may be that the conversation between Trump and Clark was a legitimate exercise of a presidential function. But it is also possible that this conversation, with Trump acting as a failed candidate for re-election, was to enter a criminal conspiracy to commit election interference, with the intended outcome being the derailment of a free and fair election in order that Trump could retain the presidency.
This is a triple slam punk!
It cannot be a legitimate “exclusive/preclusive” presidential power to direct his officials to commit crimes for his personal benefit. It cannot be a legitimate “exclusive/preclusive” presidential power to subvert the democratic process.
When Nixon green lit the Plumber’s Unit to commit illegal acts (e.g., warrantless wiretapping, breaking into offices) there was no question that these were crimes. Nor was there any question that although he was president, and he made what history has shown were bogus claims of “national security,” he would have been prosecuted for those crimes when he left office. Only a pardon from his successor spared us the continuation of our “long national nightmare.”
What’s changed over the past 50 years? The answer is the composition of the Court from a Court that issued opinions with which we could disagree, to a partisan political Court advancing a predetermined social/economic/political agenda. This may be the Court with the most conflicts of interest in the history of the country.
NOTE: I wrote the above prior to the story published by the Sunday New York Times on September 15, 2024, that reveals the intellectual and constitutional dishonesty of John Roberts. The piece is linked below and is well worth the time to read it.
There was an post script to the Trump decision. Two weeks after the Trump decision, Federal Judge Aileen Cannon of the United States District Court for the Southern District of Florida dismissed the charges brought against Donald Trump for illegally possessing classified documents.
Did she do this because she bought into the immunity decision? Nope. She did it because of a concurring opinion authored by Justice Clarence Thomas. He wrote what can only be described as an advisory opinion opining that Jack Smith was illegally appointed Special Counsel by the Justice Department. Keep in mind that no federal court at any level issues “advisory” opinions.
Thus as a direct and nearly immediate result of Trump, Judge Cannon had sufficient legal cover to dispatch a case that she’d been trying to kill for nearly two years. Smith has appealed to the circuit court and from there it’ll no doubt go to SCOTUS for more mayhem and hijinks.
Although members of the federal bench serve for life (something I tend to agree with) they are appointed and confirmed by those we elect. In the next presidential term, it is thought that there will be at least two openings on the Court.
Those we elect must do a better job appointing worthy nominees to the bench. And the senate must perform its due diligence without partisanship. The rule of law and the future of our imperfect democracy depend on it.
The preceding discussion was a small attempt to describe how the rule of law is applied in a liberal democracy and is applied in an illiberal, authoritarian governmental regime. Liberal democracies expand and protect the rights of the people. Illiberal governments protect society’s elites and selected groups, often at the expense of the vast majority of people.
Recently, literally in a number of cases, we a trending more in the illiberal direction.
I’ll conclude with the passage below, one that freedom loving people should embrace:
“Wherever law ends, tyranny begins.” John Locke, Second Treatise of Government.
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