Cross posted from my Patreon
On Monday, the Supreme Court of the United States (SCOTUS) finally ruled on the issue of Trump’s immunity, brought in relation to charges of election interference. While they didn’t explicitly say he couldn’t be charged with a crime here, they did grant a very broad immunity to crimes while in office for U.S. presidents as long as they were committed as part of “official duties” rather than “private activities.”
This is a frustratingly broad statement, which means the conservative court that we will have for another generation or two (I wouldn’t hold out hope of any Democratic president getting a shot at appointing a replacement for any existing conservative justice for decades, much less for anything to come out of calls to expand the size of the SCOTUS to allow for moderate or liberal justices to tip the balance).
As many have pointed out, this ruling is akin to making the president a king, and right on the verge of July 4th, where we celebrate independence from the British monarchy.
It’s not hard to see how a conservative court could use the new ruling to help ensure protection for Republican presidents and prosecution for Democratic ones. Example? A president’s duties include negotiating treaties. So, if Donald Trump or another Republican president were to include some proviso for payment to a company they own, the courts could say that the treaty was the main thing, but the crime of bribery or graft or whatever was part of an official duty, so no prosecution could happen. Watch a Democratic president attempt the same, and courts could rule that the motivation was personal profit—a private act—and the treaty was just a ruse to get there.
If this happened in lower courts and then such cases made it to the Supreme Court, where do you think they will side? It’s the ultimate trump card (pun fully intended) to enshrine criminality for the Republicans but not for Democrats. In fact, I can see all sorts of acts other than financial ones being deemed criminal if done by Democratic presidents that would not be framed as such for Republicans.
As for Trump, it means that any of his many clearly shady dealings during his presidency—like election interference—will not make it to any court before the election and probably not afterward either. I wouldn’t hold out hope that being charged for state crimes as opposed to federal ones will help—we’ll just see some ruling that being president overrules any state concern. Trump will likely never see a prison cell, folks.
But, honestly, this immunity ruling isn’t the worst, in my opinion, of the recent rulings. The court also limited the scope of anti-bribery law, essentially saying that if an official is given a “gratuity” after an act, it isn’t bribery. So now all that corrupt officials have to do is make sure they get paid after they misuse their office for some powerful individual or interest, and it’s legal. Obviously, this would also protect various SCOTUS justices who have been receiving gifts that are not only unethical but should be deemed criminal.
And this dovetails into another ruling, wherein the SCOTUS upended four decades of precedent to take power away from federal regulatory agencies. You see, when legislatures, including the U.S. Congress, make laws, they make the wording on the broad side because they cannot predict all the of the means necessary to make the laws work in real life. That’s why the executive branches of governments have agencies filled with experts who figure out the minutiae of how to enforce and implement the laws properly and effectively. An earlier court ruling from decades ago related to Chevron stipulated that courts should defer to scientific experts, health experts, and other experts at agencies when a law isn't clear, so long as their regulations are reasonable.
This is now out the window, and the courts are now deemed to have authority to overrule the experts in areas where the judges and justices have no expertise.
Some have said that the SCOTUS made a mistake here, as it will mean a flood of cases that they have to deal with now. But understand this: They don’t care. I’m sure deep-pocketed conservatives will make sure there are plenty of new clerks and such to help out when they want to go after regulators to gut their enforcement powers.
It’s a blatant power grab to take authority away from the executive branch, all for the benefit of the people with money and power who don’t want to be regulated at all.
The SCOTUS conservatives are counting on the fact that during a Republican presidency, the need to hear regulatory cases will be minimal because Trump and gang are already moving toward ensuring that people in agencies who aren’t loyal to the president, for example, can be fired and replaced with people who will do whatever they are told—science, facts, safety, logic and the like be damned.
What the SCOTUS did here was to ensure that even if there is a Democratic president and a Democratic congressional majority, they don’t even necessarily need to rule a law as unconstitutional. They can simply allow the conservatives to bring cases against regulators and rule that the regulators are being unreasonable and unfair. Essentially, the SCOTUS—which remember, will likely be conservative for the next few decades at least—has given itself the power to render the president and regulatory agencies and Congress impotent if they like.
Combine that with the anti-bribery ruling, and the conservative SCOTUS justices can also be tipped afterward in reward for doing this.
Nice little closed loops, aren’t they? Conservative presidents, legislators, and justices can now rule with impunity and commit crimes and not be punished for it at all. Instead, they will prosper, and most people will suffer for it.
No, it’s more than the immunity ruling and the potential for Trump or any president to be king now (as long as they’re Republican). Now we have a very subtle coup, orchestrated by the SCOTUS, to ensure that even more heinous right-wing agendas will be unveiled and more rights rolled back and more authoritarian rule implemented. Many of us warned of this around 2016 when we said a Republican president would be able to shape the Supreme Court for many of our lifetimes—perhaps the lifetimes of even our children.
A lot of people scoffed and cited “checks and balances” and “court precedent.” Well, that doesn’t matter anymore as we saw with Roe v Wade, and if we don’t stop electing conservatives—that is, Republicans in general—to office in numbers that give them the power, we will soon truly have a country ruled by money and power alone, where the bulk of the population will be trod upon, marginalized groups will be openly discriminated against, and life will get so much worse than it already is.
I’m really despairing this week with so many rulings against common decency and concern for all of our health and safety.