WASHINGTON—It’s deadline day for Donald Trump today at the U.S. Supreme Court, and maybe for democracy, too.
At issue is whether, by being a former president, one-time real estate mogul Trump—and any other ex-president—will enjoy absolute and perpetual immunity from criminal prosecution.
Trump says “yes.” Precedent says “no.” But the five-justice right-wing majority on the High Court has shown itself very willing to toss precedents out in favor of imposing their ideology on the country.
Just as they did on women in junking the federal constitutional right to abortion. Just as they did for millions of state and local government workers five years ago in ruling all of them could be “free riders” using union protections and services without paying one red cent for them.
After all, the right to abortion had stood for 49 years and the requirement that those workers must pay dues—agency fees, legally—for the services they use had stood for 47.
If the justices reverse lower court rulings in favor of letting cases against Trump go forward because there is no post-presidency immunity, then the rule of law gets tossed in favor of the rule of Trump.
In a case the justices didn’t really have to take, Trump argues he needs the absolute immunity now and forever or the power of the presidency is fatally compromised because any decision he made while in office could be challenged in court once he leaves.
The subtext to his argument, of course, is that Trump is trying to return to the Oval Office, as this year’s Republican nominee for president.
There, as a Justice Department legal opinion memo states, he’d enjoy that absolute immunity from prosecution again. He’d be above the law. Which is what he wants, in the now-infamous interview with a Fox “News” Trump shill where Trump declares he’d be “a dictator on day one.”
Nobody believes he’d stop then. Indeed, his legions of MAGAites don’t want him to stop then. They want a dictator, and Trump promises he’d be one. His Project 2025 think-tank gives him just that.
It’s preparing for a new Trump term and proposing ideas such as sending troops into the streets against Black Lives Matter—and any other dissenters—and imposing martial law.
The justices didn’t have to take the case, just as they didn’t have to take the only remotely similar case, Bush v Gore, almost a quarter of a century ago, retired Justice Stephen Breyer told MSNBC the day before the High Court heard oral arguments on the Trump immunity case.
This court, like that court, could have let the detailed and specific lower court ruling stand. In the Bush-Gore case, it would have let the Florida Supreme Court decide that election in the vital swing state that decided who won the White House. But by 5-4, they stopped the vote count and ruled for Bush.
Here, the U.S. Court of Appeals for D.C. issued a unanimous ruling declaring Trump is not above the law. It said the cases against him for ordering, aiding, and abetting the Jan. 6, 2021, Trumpite invasion, rebellion, and insurrection at the U.S. Capitol could and should stand.
If the Supreme Court reverses that, as Justice Breyer implied in the MSNBC interview, democracy is in doubt.
Quoting Abraham Lincoln’s Gettysburg Address, Breyer said: “Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation or any nation so conceived and so dedicated, can long endure.”
That, in essence, hangs in the balance in Trump’s Supreme Court case.
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