Trump’s Immunity Claims – "Originalism" Becomes "Convenientism"

 

Trump’s Immunity Claims – “Originalism” Becomes “Convenientism”

Did the Supreme Court Hand Trump His Delay-Wish Victory?

If there were ever unequivocal evidence that the “originalists” on the Supreme Court don’t believe their own basis for constitutional interpretation, it is their game-playing, issue avoidance facing Donald Trump’s claim for immunity, absolute and unbridled. Even as the Justices seemed to wrestle with immunity from official and unofficial acts during oral arguments, the rightwing appointees seemed to dwell in the world of “what if” hypotheticals in their questions to appellate counsel, sidestepping the actual facts before them. The facts they were avoiding would have forced them to reach an immediate conclusion, instead of suggesting that a delaying remand to the lower courts was required. We shall see how they ultimately rule. But what’s going on here?

First, understand exactly what conservative judges have begun to use as justification for ignoring a world of nuclear weapons, AR-15s and social media: requiring judges to apply the “correct” interpretation solely on the “text” of the constitutional provision within the highly limited historical context that existed at the time of enactment. Originalism. And until this immunity legislation, “originalism” has “forced” the court, for example, to apply a historical context of “flintlocks and muskets” to gun control over the reality of AR-15 semiautomatic assault rifles. There is no way the Constitution, intended to serve as a guideline for the ages, should be limited to the history and technology of the 18th century. But to the Court’s conservative supermajority, that is precisely what they have used in their opinions. Judges as history researchers?

The October 3, 2023 Newsweek puts it this way: “The U.S. Supreme Court's new term is here, offering new opportunities for the justices to remake our constitutional rights in the name of history. In its last two terms alone, the court did just that to eliminate the federal right to abortion, undercut gun control measures, and undermine affirmative action. But whatever the Justices are up to, it isn't history.

“The court has always invoked historical understandings and precedents in its decisions, but its recent calls to history flow from a different source: a longstanding commitment in conservative political and legal circles to ‘originalism,’ the idea that our constitutional rights are defined by—and limited to—whatever the earliest generations of Americans thought the Constitution meant several hundred years ago. So, if it were against the law to go hatless in the late-eighteenth century, hat-wearing would be banned today. Originalism denies the reality that law must change over time as our society changes.”

Enter Donald Trump who has refused to accept the orderly transition of presidential power, egged his followers to do whatever is necessary (“fight like hell”) to keep him in office beyond his term and following an election which he clearly lost – as over 60 cases before judges (some appointed by him) have ruled after looking at all the “evidence” of purported “election fraud” (aka “The Big Steal”).

Trump’s underlying legal approach, to the crimes with which he has been charged in connection with his efforts to reverse the election, has been to find ways to delay the underlying trials until he (he assumes) becomes President in this November’s election. Between his presidential pardoning power and an ability to order the US Department of Justice under his control to stand down from any federal prosecutions, Mr. Trump believes that his election can control this prosecutorial effort to send him to prison. Delay has been a Trump litigation strategy his entire life. But to give Trump that sought-after delay, the conservative majority would have to eschew originalism to substitute an obvious partisan bias to their decision. How “convenient”!

From a biased Trump appointed federal judge in Florida considering his possession of classified documents beyond his term and his federal appointees to the US Supreme Court, creating a de facto “legislative” body with no checks and balances, Trump seems to be getting his delay. He believes that if there were more pre-election time, his likelihood of walking away Scot free would otherwise be unlikely. So, let’s examine this issue through the scholarly eyes of how immunity claims from Trump have no basis in the Constitution or the relevant historical context, based on a historically based amicus brief to the Supreme Court against Trump’s claim:

“‘When designing the presidency, the founders wanted no part of the immunity from criminal prosecution claimed by English kings,’ said [Holly] Brewer, Burke Chair of American Cultural and Intellectual History and Associate Professor of History at the University of Maryland. ‘That immunity was at the heart of what they saw as a flawed system. On both the state and national level, they wrote constitutions that held all leaders, including presidents, accountable to the laws of the country. St. George Tucker, one of the most prominent judges in the new nation, laid out the principle clearly: everyone is equally bound by the law, from ‘beggars in the streets’ to presidents.’

“In their brief, the historians show that Trump’s alleged crimes are an especially egregious violation of principles that are foundational to American democracy… ‘The founders argued over many things, but they uniformly agreed that the president wasn’t supposed to be a king,’ said [Rosemarie] Zagarri, Distinguished University Professor and Professor of History at George Mason University. ‘They created an electoral process that was independent of the chief executive, partly as a way of ensuring that presidents wouldn’t be able to manipulate the process. Now we have a former president who is breaking the mold the founders cast: claiming the privilege of criminal immunity — formerly a privilege held only by the British monarch — so that he can avoid trial for trying to subvert the results of an election he lost.’…

“‘Former president Trump’s claim that he can attempt to overturn the results of an election without facing the consequences is deeply un-American,’ said Thomas Wolf, co-counsel and Director of Democracy Initiatives for the Democracy Program, Brennan Center for Justice at NYU Law. ‘From the birth of the country through President Clinton’s acceptance of a plea bargain in 2001, it has been understood that presidents can be prosecuted. The Supreme Court must not delay in passing down a ruling in this case.’ Brennen Center Press Release, April 8th.

This year, the Supreme Court has reached a nadir in public approval and respect, according to most polling… with good reason. See also my recent Celebrating (??) May 1st – Law Day in the US blog. As noted, with decisions vitiating protections to ensure free and fair elections, protection of the public from increasingly sophisticated weapons used to kill a very rapidly growing number of innocents, to environmental rules and repealing Roe vs Wade, the Court and popular sentiment seem to be splitting farther apart. If this case were indeed remanded to the lower courts for additional findings and rulings, we will have absolute confirmation that this Supreme Court has become a partisan panel under Donald J Trump’s MAGA directives.

I’m Peter Dekom, and “autocracy 101” dictates that the first step in disabling democracy is to take over the judicial system or render it powerless.