WHO SAYS “IMMUNITY?”
I still intend to write about the events at Columbia and elsewhere, but once again must postpone that, to remind myself and all of us what happened last Thursday. To say that day’s hearing about Trump’s claim of immunity was “shocking “ is the understatement of the Century: there’s nothing like it in American history,–nothing except the Court’s loathsome discussion of abortion the day before — and its clarity is chilling.
There is no “Supreme Court,” but only a cabal of Republican stooges. Barrett is sometimes, as now, a possible exception, with her suggestion that Jack Smith indict Trump only for “serious” offenses; and we often don’t know where the gnomic Roberts is going, with his vacillation between siding with the fascists and trying to preserve the Court’s reputation. Which of those four is the worst fraud: you could argue for Thomas or Alito but among them Kavanagh is the only rapist– I don’t know–and it doesn’t matter. Unless the question period was a kind of academic joke, the Republican Party has got the stalling imprimatur once again, and the trial of the Fascist leader will be put off until after the election. Here’ Alito’s entry for what I’ll shortly explain as the Roger Taney Award:
“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 gonna be able to go off to 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? And we can look around the world and find countries where we have seen this process, where the loser gets thrown in jail.”
Let’s see: what actually happened for which the mentally disturbed Alito is prepared to grant immunity. We know, don’t we–no hypothetical necessary. The upshot as one commentator put it, “was that a majority of justices appeared prepared to send the case back down to the lower courts for further unnecessary litigation, which would almost certainly eliminate any chance of a trial being held before Election Day. In short, the justice system is doing its job by trying to hold to account a former president for subverting the last election before he runs in the next one…. And yet the right-wing justices are saying, essentially, not so fast — and maybe not at all. In Josh Marshall’s words: “It’s a rogue court, a thoroughly corrupt one, one that is so far gone in its corruption that it feels free even from the practical obligation to clothe its corruption for the sake of appearances.”
To conclude, this behavior leads me to a comparison no con law scholar would think of to make: eligibility for The Roger Taney Award.
Almost any con law specialist would argue that the 1857 Dred Scott decision was the worst in our history, but now I’m not so certain. Chief Justice Taney–no equivocator he–was merely calling it like it was, as he saw it. Slaves were not citizens and so could not have the protections that citizens have–how dare he? Except he was just giving a reading of the Constitutional provision that slaves, for the purpose of counting a population, a slave shall only count as three/fifths of a person: he didn’t invent that! Starting with James Madison and Thomas Jefferson, we don’t want to think about the Founders who signed off on that.
Moreover, Taney almost single-handedly conjured up the Civil War: as Google carefully puts it: “The Dred Scott decision opened up huge sectional divisions among Democrats, leaving an opening for a different party’s candidate to win the presidency.”
Indeed, that candidate was the guy who said it for all time: “A house divided against itself cannot stand. I believe this government cannot endure, permanently half slave and half free…”
The Kansas-Nebraska Act had allowed for “popular sovereignty” for new states, and Dred Scott had now affirmed that the majority could choose slavery, enslaving “citizens.” And that Abe Lincoln’s Republican Party could not allow: Taney, you might say, had predicated the Emancipation Proclamation; Lincoln weaponized it. And Taney takes some ironic credit for that. by his reading–hardly unique–of the Constitution. The new Nation was divided: he took a side in the division.
But today’s Republican lackeys? The “Originalists? As one commentary puts it, “The Founders fought a war to rid themselves of abusive executives — King George III and his royal governors — who were endowed with what John Adams described as the ‘“badges of domination called prerogatives.” The king’s prerogatives included the privilege to stand above the law and not be prosecuted for crimes. The king, in other words, could claim the very immunity that Trump now seeks.”
And, of course, uses it. As the allegations against him spell out, overturn the outcome of an election and so seize power. I would not consider anyone who was concerned about limiting that president’s power as postulated by the Court’s conservatives not worth talking to, let alone having decision-making powers affecting me–or any one who’s not prepared to be a Trump lackey.
It hardly bears a final mentioning: he’s not a President! It would have been easy for him to avoid prosecution–just don’t try to overthrow the elected Government. But that of course would have been too much to ask.
The President as Monarch? It’s kind of charming, to try to imagine King Charles, that is to say a real monarch rather than a two-bit mobster, proroguing parliament Parliament. He and Camilla would be living it up on some tropic isle before you can say “Boris Johnson.”
