Legal experts: "Shameful" Supreme Court puts US one vote away from "the end of democracy"

It’s not a hard question, or at least it hasn’t been before: Does the United States have a king – one empowered to do as they please without even the pretext of being governed by a law higher than their own word – or does it have a president? Since Donald Trump began claiming he enjoys absolute immunity from prosecution for his efforts to overturn the 2020 election, two courts have issued rulings striking down this purported right, recognizing that one can have a democracy or a dictatorship, but not both.

“We cannot accept former President Trump’s claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power – the recognition and implementation of election results,” states the unanimous opinion of the U.S. Court of Appeals for the D.C. Circuit, issued this past February, upholding a lower court’s take on the question. “Nor can we sanction his apparent contention that the Executive has carte blanche to violate the rights of individual citizens to vote and have their votes cast.”

You can’t well keep a republic if it’s effectively legal to overthrow it. But at oral arguments last week, conservative justices on the Supreme Court – which took up the case rather than cosign the February ruling – appeared desperate to make the simple appear complex. Justice Samuel Alito, an appointee of former President George W. Bush, argued that accountability was what would actually lead to lawlessness.

“If an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?” Alito asked Michael Dreeben, the lawyer representing special counsel Jack Smith and the Department of Justice.

As Dreeben reminded the court, no former president, before now, has ever faced criminal prosecution after leaving office. That’s because only one, Donald Trump, refused to accept the outcome of a democratic election and, when all legal avenues were exhausted, encouraged a mob to block the counting of the winner’s electoral votes.

Trump’s own legal counsel, D. John Sauer, argued the former president should even have enjoyed the right go further – to order the military to carry out a coup, or to kill his political rival, without fear that any American law could touch him. While there may be legitimate concerns of a hypothetical prosecution that is frivolous and partisan, that has not happened before and it is not happening now; the risk of an executive, unmoored, seems far greater.

Not all of the court’s right-wing members went as far as Alito, making legal accountability the mother of tyranny, with Justice Amy Coney Barrett, a Trump appointee, credited by observers for challenging Sauer’s claim that a president could only be held accountable if they are successfully impeached and removed from office. But when faced with the absurd – a legal rationale for political assassinations, couched in the language of the U.S. Constitution – none were willing to come out and ask: What are we even doing here?

Writing at Slate, legal commentators Dahlia Lithwick and Mark Joseph Stern said the court’s right-wing bloc acted like “cynical partisans” eager to spare one man, Donald Trump, from consequences for his actions.

“To at least five of the conservatives, the real threat to democracy wasn’t Trump’s attempt to overturn the election — but the Justice Department’s efforts to prosecute him for the act,” they wrote. “After so much speculation that these reasonable, rational jurists would surely dispose of this ridiculous case quickly and easily, [the oral arguments] delivered a morass of bad-faith hand-wringing on the right about the apparently unbearable possibility that a president might no longer be allowed to wield his powers of office in pursuit of illegal ends.”

Laurence Tribe, a law professor at Harvard University, said the oral arguments were “embarrassing.” Instead of a court hearing, it felt more like congressional showmanship, Tribe told MSNBC; even if it doesn’t end in a total victory for Trump, the hearing itself gave him most of what he wanted – a delay, with any ruling likely to prevent voters from hearing the case against him before they elect another president-king. “It was a shameful performance by the court,” Tribe said, “buying the very time that Donald Trump wanted.”

It says a lot about the state of the conservative legal movement that so many Federalist Society alum, ostensibly committed to limited and constitutional government, would even consider the argument that one person, in America, should stand above all others.

Want a daily wrap-up of all the news and commentary Salon has to offer? Subscribe to our morning newsletter, Crash Course.

“I’m profoundly disturbed about the apparent direction of the court,” J. Michael Luttig told The New Republic’s Greg Sargent. “I now believe that it is unlikely Trump will ever be tried for the crimes he committed in attempting to overturn the 2020 election.”

Luttig is himself a conservative and former federal judge; Trump’s lawyer in the Supreme Court is one of his former law clerks. But he no longer recognizes conservatism as a philosophy of limited government; it is certainly no longer the movement for those who believe no one is above the law.

“The conservative justices’ argument for immunity assumes that Jack Smith’s prosecution of Trump is politically corrupt and seeks a rule that would prevent future presidents from corruptly prosecuting their predecessors,” Luttig said. “But such a rule would license all future presidents to commit crimes against the United States while in office with impunity. Which is exactly what Trump is arguing he’s entitled to do.”

Andrew Weissmann, a former federal prosecutor who worked on special counsel Robert Mueller’s Russia investigation, believes the very fact that the Supreme Court took up the case is alarming. Appearing on MSNBC, he said the very fact Trump’s legal arguments are being considered is a victory for the former president, likely delaying his election-interference trial until after November. But that the court is seriously considering his claim to immunity for all “official acts” taken as president signals that American democracy is in a terrible state.

Trump’s claims “could possibly be squared … with the text of the Constitution or the history of the presidency,” Weissmann said. And yet, “there were justices who actually were taking this seriously. And it just was, frankly, shocking.”

At least four of the court’s conservative justices appear likely to side with Trump, Weissmann argued, suggesting it could hinge on Chief Justice John Roberts, putting the country “one vote away from sort of the end of democracy as we know it, with checks and balances.” The U.S. would not just have an “imperial presidency,” he continued, but a criminally immune king. “What is so shocking is how close we are.”