I wasn’t cynical enough about this Supreme Court.
When they accepted Trump’s outlandish appeal over the January 6 prosecution and then sat on it for months, I assumed the delay was the point. I believed that with a Democratic president in office, they’d see the obvious downside of ruling that a president is immune to criminal charges. But I thought their intent was to stall and drag out the process until there was no longer a realistic chance of prosecuting Trump before the election.
I underestimated their depravity.
Their newest ruling, divided exactly down partisan lines, states that a president is immune to prosecution for all “official acts”. In and of itself, this wouldn’t necessarily be outrageous. It makes sense that federal officials shouldn’t face prosecution for performing their duties under the law, the same way that members of Congress can’t be sued for anything they say on the floor.
The massive, frightening problem is that this ruling is sweepingly vague about what does and doesn’t constitute an official act. It seems to suggest that any action taken with the powers of the presidency would count, even if it’s for clearly self-serving or nakedly dictatorial motives. Issued as it was in response to the January 6 prosecution, it implies that even attacking Congress and trying to steal an election is an official act!
For all intents and purposes, this is saying that a president is above the law and can’t be punished for anything he does. That’s not just my opinion. It’s straight from Justice Sonia Sotomayor’s searing dissent:
Justice Sonia Sotomayor made this argument in her sharply worded dissent, which Mark Osler, a University of St. Thomas law professor, called “the most chilling part” of the opinions released today.
Sotomayor wrote that the decision “effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding…. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune…. In every use of official power, the President is now a king above the law.”
Under this court’s logic, Richard Nixon shouldn’t have resigned, because he did nothing that was prosecutable. Concocting a plan to spy on his political rivals and secure reelection is an official act for which a president can’t be charged.
This is the clearest sign you could imagine of the bottomless contempt that the Republican justices have for the rest of us. They’ve granted Biden near-unlimited power – and they weren’t concerned about it, because they believe our side will play by the rules and theirs won’t. They believe that liberals are civil and polite and nice, that we’ll follow the rules even when we don’t have to. Meanwhile, the next Republican president will be freed to abuse his power to its full, terrible extent.
There’s only one possible response: Biden has to call their bluff. This isn’t the time for kindly Uncle Joe, this is the time for Dark Brandon.
One example I thought of would be his student debt forgiveness plan, which has been repeatedly blocked by Republican judges. Biden should announce that the plan is moving forward in its original form, and the courts no longer get a say in it. What’s anyone going to do about it? He’s immune to consequences for an official act, and if any lesser official faces prosecution for defying the court, he can just pardon them.
Another possibility: The Defense Production Act allows the president to take over civilian businesses for purposes of national security, specifically including energy and infrastructure. He should commandeer fossil fuel companies and have them start making windmills, solar panels and geothermal power – a WW2-scale mobilization to reorient the American economy toward a green transition. The Inflation Reduction Act is good, but this would be better.
One more obvious move, one that was even floated during the trial itself, would be for Biden to declare his political rivals “enemy combatants” engaged in terrorism, and have the military whisk them away to Guantanamo Bay, beyond the reach of the law, where they can be imprisoned indefinitely without a trial. He should do this to all the Supreme Court justices who voted for this decision and then appoint their replacements. It would be a fitting taste of the medicine they sought to give to others but never expected to take themselves.
These suggestions sound outlandish, and maybe they are. But it’s a long, frustrating pattern in American politics that the progressive left only cares about the moral high ground, while the religious right cares about power. They ask what they can get away with and who’s going to stop them – and if the answer is no one, they have no hesitation in brushing aside any rule that stands between them and what they want. That’s why we lose more often than we win.
We need to fight as dirty as them. Playing by the rules when your opponent doesn’t amounts to unilateral disarmament. The Supreme Court has ruled, almost literally, that when the president does it, that means it’s not illegal. They’ve handed our side a weapon, trusting that we won’t use it against them. Biden has to make them regret it.
A German caricaturist agrees. Biden could stay president until he drops dead: https://www.stuttmann-karikaturen.de/karikatur/8659
We didn’t have to be here now. We had a choice back in 2016. “BUTTER EMAILS!” (which was a complete nothingburger) and “But she didn’t campaign in (list of places she actually campaigned in)” and “I’d TOTALLY vote for a woman! Just not THAT one! Warren? Not her either. Klobuchar? NO WAY! But I’d totally vote for a woman, oh, yes, I would!”
Add in Russian interference and general R fuckery, and look where we are.
Mehdi Hasan makes a good case why Biden should step aside and let Harris take over: https://www.theguardian.com/commentisfree/article/2024/jul/03/kamala-harris-joe-biden-election-2024-democrats
As an aside, I’d like to see a progressive like AOC trounce the Mandarine Dalek in a presidential debate. But I guess that is just wishful thinking.
As I was reminded by someone on social media today, Concerns Were Also Raised about Hillary Clinton’s health in 2016 and her fitness to assume the presidency.
Also, going back a little further, I very clearly remember liberals in 2012 freaking out that Barack Obama was going to lose reelection because he had botched the first debate against Mitt Romney.
It’s the same playbook every election. But it only works if we give in to fear and defeatism.
Does that ruling mean that Biden could go to 5th avenue and shoot Trump?
As for the rest of the common Americans, our job now is to hold the line until January. Vigorously protests and resist any attempt by the GOP or their courts to abuse power, and give no recognition to those decisions clearly against the constiution; this means sabatoge of their efforts at all levels, from disrupting legislative attempts to restrict out freedom to nontolerance for pro-MAGA canvassing. And if the worst is to come and Trump would win, reason forbid, or a massive conspiracy among the red states should come along to overturn Biden’s reelection, I have one solution that may work: suppose blue areas, their companies and their buyers simply opted to remove themselves from the red state economy? No business dealings, no transactions or commerce, no even supplies, unil red America dopped the present GOP and allowed for the implementation of progressive policies.
Biden could show the absurdity of the ruling by ordering the arrest of (at least) the six justices who decided that Presidents are above the law when the act officially, and preserving, protecting and defending the Constitution is surely one of the President’s duties.
So there are the six right wing thugs in jail. What now? What mechanism would exist to get them out?
All of the above, except the forgiving of student loans, would have to be implemented by someone, and that is why they can’t be implemented in a timely manner in a law-abiding administration. An example of a purely criminal Dark Brandon (DB) that does not require many US accomplices follows. DB writes up and signs an executive order that documents his criminal plan and classifies it at the highest level making it formally an official presidential action. He then calls his good buddy Zelensky and asks for a special ops team that will be given full diplomatic immunity while they are participating in this plan. He also asks his most trusted SS protection member to quietly ask around for another team member willing to drive the ‘diplomats’ around during their stay, and that this will be extremely illegal, but a bonus of $100 million, full presidential pardon for all past crimes already signed, and witness protection if wanted. A similar deal given to the trusted SS member, too. The plan could be kidnapping Barron Trump and hiding him somewhere to show the world how much his dad cares about him, or killing Alito, or removing enough newly elected Republican house members that they cannot play coup with the counting of electoral votes if Biden wins.
Other things that DB could do is shutting down Guantanamo by recalling all the troops, leaving the gates open, signing an executive order giving Cuba full access to all materiel on the base in exchange for Cuba sending all the prisoners to their home countries, and changing Cuba to a most favored nation status. Giving pardons for all outstanding student debt. Giving pardons to all marijuana related criminals. Changing marijuana’s federal status to a non-criminal drug. All of that might even be legal, too.
So many things to do. DB is going to be too busy to waste his time debating.
I think Biden has a less extreme option than what Alan G. Humphrey suggests @6.
Biden could invoke the National Emergencies Act citing a judicial coup in progress and give orders for the arrest of the Supreme Court’s gang of six. The arrest order could be written to not take effect for a few weeks to give the gang of six some time to change their minds, or maybe just run away to some place that won’t extradite them back to the U.S. thus showing the world who they really are. The arrest order would be recinded if the gang of six do change their minds and so the president would no longer have power approaching that of a king.
Biden won’t do that, of course; but we can fantasize.
billseymour @7
My first paragraph above was to show that any real criminal activity by President Biden requires outside accomplices, Seal Team Six is not going to follow an illegal order to shoot a US citizen within our borders, and they would not follow Trump’s order to do so either, unless all the high-level military leaders had been replaced. All the many examples I’ve seen of what King Biden can do fail in that same way. Even if Biden did declare a national emergency, I don’t see Garland ordering the FBI to arrest any SCOTUS justices. It would violate the standard practice of DOJ separation from the presidency and separation of powers of the three branches of US government*. My second paragraph was to show what Biden can do now without any accomplices, because those actions are within the purview of the executive branch, especially the presidential pardons. And, the whole comment shows just how large Trump’s criminal gang is that helped and continue to help (I’m looking at you SCOTUS and half of Congress), with Jan. 6, a coup that is still in progress.
* BTW, I think that most of the judiciary will quickly come to the conclusion that the US Constitution clearly shows that presidents do not have immunity for official acts and this SCOTUS decision is not worth anyone’s used toilet paper and should be ignored after a healthy laugh and ridicule session. This was not a serious decision, but a delaying tactic.
Biden needs to do it. He needs to do this, that, and the other thing. But he won’t, because he hasn’t got the backbone the great Goddess gave the average slime mold…and you know, he’s either naive enough to think our “institutions” will protect us, or too out too lunch to realize they won’t, or at worst, philosophically in cahoots with the “unitary executive” party.
This country is over. This is by far the single worst July 4th I’ve ever lived through and that includes the one where I was in a womens’ shelter in a city I’d never been in. We didn’t even make it 250 years, damn it!