WASHINGTON—By lopsided majorities, the U.S. Supreme Court on June 26 issued two rulings with political implications—but not the one everyone awaits, on whether right-wing Republican Donald Trump’s past White House service makes him forever immune to federal criminal prosecution.
In one decision, the right-wing majority restored a legal distinction between corporate “bribes” to politicians to secure favors and action and “gratuities” given afterwards, thanking the politicians for their decisions. Bribes are illegal, the justices said. Gratuities aren’t.
Bribery and gratuities are “two separate crimes” with “two different sets of elements,” Justice Brett Kavanaugh wrote for the court’s six Republican-named justices.
Still to come as the justices enter the final days of their current term are two key rulings: The Trump case and one involving whether independent federal agencies—think the National Labor Relations Board—can still issue federal rules without outright congressional OK or denial of every one.
The Trump case is important to the entire country, showing whether the justices will let the delayed federal trials of convicted New York state felon Trump go ahead, or whether, as a former president, Trump can’t be prosecuted in federal court for anything, ever again.
Bluntly, it means he wants to escape prosecution for aiding and ordering the coup attempt at the U.S. Capitol three and a half years ago, and for stealing top-secret documents and taking them to his Mar-a-Lago estate. He’s been convicted of 34 campaign finance and coverup felonies which break New York law. Post-presidential immunity can’t touch them.
The other case involves what’s called Chevron deference. The justices ruled, decades ago in a case involving Chevron oil company, that a court must defer to an agency’s expertise and investigation of a problem before it writes a rule to curb or end the damage involved unless the agency clearly can’t justify its rule or breaks the law which created that agency and defined its responsibilities.
Chevron’s deference is a top target of the radical right and corporations, as well as Justice Neil Gorsuch, who blasted it in a dissent when he was a federal appeals court judge in Denver.
The capitalist class, which weighed in with friend-of-the-court briefs in this case—as did the right wing—prefers to see rules tied up in Congress. Not only would lawmakers have to plow through every rule, saying “yes” or “no” and delaying it meanwhile, but the logjam would be so great that in an already dysfunctional Congress, nothing at all would get done.
That suits corporate titans and the right just fine. The firms can get away with economic repression and the right-wingers can get away with political repression.
As for the bribery versus gratuities case, Trump-named Justice Brett Kavanaugh wrote “a state or local official does not violate §666” of the bribery and gratuity law “if the official has taken the official act before any reward is agreed to, much less given.
“Although a gratuity offered and accepted after the official act may be unethical or illegal under other federal, state, or local laws, the gratuity does not violate §666.
“The government asks this court to adopt an interpretation…that would radically upend gratuities rules and turn [it] into a vague and unfair trap for 19 million state and local officials. We decline to do so. Section 666 is a vital statute, but its focus is targeted: Section 666 proscribes bribes to state and local officials, while allowing state and local governments to regulate gratuities to state and local officials…Congress can always change the law if it wishes to do so. But since 1986, it has not.”
The three Democratic named justices dissented. Writing for them, Justice Ketanji Brown Jackson said there’s no practical difference between bribes and gratuities.
“This is a decision only today’s court could love,” Justice Jackson laconically wrote. It’s “ignoring the plain text of” sections of the laws covering both bribery and gratuities. Both “expressly target officials who ‘corruptly’ solicit, accept, or agree to accept payments ‘intending to be influenced or rewarded.’”
“The court concludes the statute does not criminalize gratuities at all. This is so, apparently, because ‘[s]tate and local governments often regulate the gifts state and local officials may accept,’ which, according to the majority, means” federal law cannot.
“The court’s reasoning elevates nonexistent federalism concerns over the plain text of this statute and is a quintessential example of the tail wagging the dog.” The federal law’s “regulation of state, local, and tribal governments reflects Congress’s express choice to reach…entities receiving federal funds. Congress not only had good reasons for doing so, it had the authority to take such legislative action.”
The “good reasons for doing so” appeared in a federal courtroom in Chicago two days before the justices drew their fine line between bribes and gratuities. Federal District Judge Virginia Kendall sentenced politically powerful Chicago Councilmember Ed Burke to two years in jail and a $2 million fine, for taking bribes. The sentence ends Burke’s 54-year council career.
Burke, the chair of the council’s powerful Finance Committee—and a last remnant of the city’s old Democratic machine—used his clout to, in layman’s language, demand and get millions of dollars in payments from firms that wanted to do business in his ward and in the city. And he did it beforehand. For the High Court and for Judge Kendall, those are bribes.
In the second decision issued Wednesday, justices threw out a bid by five right wingers and right-wing-controlled Missouri and Louisiana to ban White House criticism of social media firms’ lies about the COVID-19 pandemic and for firms’ failure to flag unfounded conspiracy theories and outright political fantasies.
In the social media case, lower courts sided with the right-wingers. Writing for a 6-3 majority, Justice Amy Coney Barrett said the complainers didn’t have “standing” to sue. They weren’t personally hurt by the warnings, in the COVID case, from Surgeon General Vivek Murthy, Barrett explained.
But the court ducked the actual issue of the lies themselves. “We begin—and end—with standing. At this stage, neither the individual nor the state plaintiffs established standing to seek an injunction against any defendant. We therefore lack jurisdiction to reach the merits of the dispute.”
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