The Supreme Court recently heard oral argument on Trump’s bogus claim of absolute presidential immunity. Donald Trump’s own lawyers have privately admitted that they are likely to lose their absolute immunity argument. The Court’s conservative justices were exploring wide-ranging hypotheticals about future presidential actions. Constitutional expert Congressman Jamie Raskin said that this was inappropriate because the Constitution limits cases before the court to actual controversies. Congressman Raskin taught constitutional law at American University in Washington, D.C. before he was elected to Congress. Article III of the Constitution states that the “judicial power shall extend to” only certain categories of “Cases” and “Controversies.”
During the Earl Warren Court, conservatives claimed the court was a liberal activist court. Now it is clearly a conservative activist court. The justices are helping former President Trump by delaying his trials for the attempted coup d’etat that he engineered. The court issued a stay of the criminal case against Trump. The stay should be lifted immediately because it is abundantly clear that Trump’s efforts were far beyond the scope of any immunity that he enjoys. Further, even if convicted, Trump could still raise his immunity claims. Let the trials begin now so that the voters can know if Trump is a convicted felon before the November election.
Justices Neil Gorsuch and Brett Kavanaugh, two of Trump’s three high court appointees, and Justice Alito said their concern was not the case against Trump, but rather the effect of their ruling on future presidencies. Future presidencies can wait. We need a trial now. The court should lift the stay immediately. As British statesman William Gladstone said, “Justice delayed is justice denied.”
Each time Justice Department lawyer Michael Dreeben sought to focus on Trump’s actions, these justices jumped in and asked hypothetical questions about fture presidential actions. “This case has huge implications for the presidency, for the future of the presidency, for the future of the country,” Kavanaugh said. The court is writing a decision “for the ages,” Gorsuch said.
The oral argument before the court deteriorated with Justices Kavanaugh and Gorsuch pulling absurd hypothetical questions out of their derrieres. The court spent very little argument time on the direct question before them, whether Trump’s actions to overturn the 2020 presidential election were immune from prosecution, and too much time speculating about future presidential actions. If the court comes up with a legal ruling concerning futher presidential actions it would be dicta. Dicta in law refers to a comment, suggestion or observation made by a judge in an opinion that is not necessary to resolve the case and as such, it is not legally binding on other courts. The Supreme Court should stick to the case before them and rule quickly that President Trump is not immune from prosecution in the case brought by Special Prosecutor Jack Smith.
And I must add that Jack Smith should have personally argued the case before the Supreme Court to emphasize how important the case is. Smith could have also suggested that the court drop the stay, or decided the case quickly.
Justice Amy Coney Barrett, the other Trump appointee, seemed less open to arguments advanced by Trump’s lawyer, searching for a way a trial could take place. Together with liberal jurists Sonia Sotomayor, Elena Kagan and Katanji Brown Jackson, Justice Barrett and moderate Chief Justice John Roberts have the power to lift the stay that the court imposed on lower courts. If the stay is lifted, the case in Washington, D.C. before US District Court Judge Tanya Chutkan can be set for trial. This case is the primary case against former President Trump that alleges he attempted to overturn the 2020 presidential election. Let the trial begin.
Joel D. Joseph is a lawyer and author of 15 books, including “Black Mondays: Worst Decisions of the Supreme Court” and “Inequality in America: 10 Causes and 10 Cures.” Email joeldjoseph@gmail.com.
From The Progressive Populist, June 1, 2024
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