The decision by the Supreme Court to take the case only grants Trump de facto immunity if he wins the election. If he loses the election, the trials continue and sooner or later he will go to jail. But if he were found guilty in the January 6 case on or about the time when he was nominated as the Republican candidate for president, he would still stand for office and if he won, the rule of law would end and he would be dictator for life.
So the fact remains, we have to beat him at the polls and we have to hang onto that victory in the Congress in whatever way we can so that Biden is inaugurated for a second term.
If Trump wins election it does not matter what happens in Georgia – even if the trial were held and he was found guilty, he would simply refuse to abide by the decision and deploy the military to quell any attempt to force him to abide by it.
41 comments:
Mr. Chief Justice, Members of the Court: the issue before you is whether an incumbent President, who orders the Navy Seals to kill selected members of this Court, and that order is carried out, can be prosecuted under the criminal law if he is not first impeached by the House of Representatives and convicted by the Senate.
I appreciate David Palmeter’s hypothetical scenario. It opens the door to all sorts of Judith Jarvisesque thought experiments. Here’s one: The Supreme Court sides with Trump. A couple of months later, Biden and Trump appear together on-stage at their only scheduled debate. A few minutes into their circus Biden pulls out a gun and shoots Trump stone dead. Biden says then and there that he did this, as president, for the good of democracy and the country, and announces his immediate resignation. Kamala Harris is sworn in about 10 minutes later, before any one can think of impeaching the now-retired president. Biden immediately flies to one of his homes in Delaware. The next day, Trump’s lawyers and other zoo-handlers demand that Biden be charged with murder; Biden, through his press secretary, reminds everybody that he is immune from prosecution. Just to add to it, Harris bows to the rule of law as enunciated by the Supreme Court and pardons Biden just for the hell of it.
Fritz,
In a case like that, what's legal and illegal simply wouldn't matter. The civil unrest would make legal remedies superfluous.
My speculation (which could be quite wrong in one respect or another) is that SCOTUS is going to decide the Colorado ballot case in favor of Trump and this immunity appeal against Trump, and release the two opinions at the same time.
Keep in mind that agreeing to hear this case does not nec. mean they're going to rule in Trump's favor. Only four Justices' votes are needed for the Court to grant cert (i.e., agree to hear a case).
You claim that if Trump wins, he will be dictator for life.
He may want to be dictator, but as someone who lives in a country where military coups have occurred, I can tell you that in order to end a democracy you need the support of the Armed Forces and the police.
Can Trump count on the support of the Armed Forces and the police to become dictator for life?
Trump's a con man with obvious psychological problems. I'm not at all sure that the generals in the Pentagon prefer Trump to Biden, who was been all too friendly with the Pentagon.
LFC,
The problem is that, assuming a June opinion following a late April argument, there won't be time to have a six-week trial (Judge Chutkin's estimate) before the election.
This is a bad sign at the SCt. because it takes 5 votes to take the case and continue the stay. They probably will issue decisions in the two cases as you suggest, but when? When? That's what it's all about.
I thought it took the votes of only 4 "justices" to take a case. Is it truly 5?
4 to take the case; 5 to continue the stay of proceedings in the trial court.
DP
I take your point re the importance of timing.
However, let's say the opinion denying immunity comes out in early June. Assume trial starts late June. Finishes early August. He's convicted by mid-August.
He would still be nominated, but the point of the trial, as I see it, was not to prevent his nomination. Running in a general election as someone who's been convicted of a serious crime in federal court will hurt him with a certain number of voters, presumably. Not with his core base, but he probably needs more than that core to win.
Why would you expect the Supreme Court to deliver its opinion in early June? To date, the court has maximized delay: first by not taking the appeal immediately (and bypassing the court of appeals), second by taking 2 weeks to announce its decision to take it and, finally, three by not hearing arguments for nearly 2 months.
All opinions of the Court are, typically, handed down by the last day of the Court's term (the day in late June/early July when the Court recesses for the summer).
The last day of th3 2023 term was June 30th. So either 6/28 or 7/3 (a Wednesday because of the July 4th long weekend) seems more likely than early June. And I wouldn't put it past this court to stay in session until 7/12 out of spite.
And if it drops on 7/3, probably at 7PM or so to miss the evening news.
LFC,
So long as the stay is in place, the trial court can do little or nothing. For all practical purposes, it can't even start. There is discovery to do, as well as jury selection. It can't even start any of this until the S.Ct issues its decision. The S.Ct could have done otherwise: it could have lifted the stay to allow these matters to be dealt with, so that, assuming the decision is against Trump, the trial could start reasonably promptly.
What the Court has done, by its actions from the start--i.e., when months ago Jack Smith asked the Court to skip the Court of Appeals and decide the issue, they declined to do so--is to slow the proceedings down.
When they want to move promptly, they can. They decided Bush v. Gore in a single day overruling the Florida Supreme Court's interpretation of a STATE! statute.
Meanwhile, the great and glorious District Court Judge in the documents case can play games with her own trial schedule in a way that screws up an early trial date for the DC case.
@ marcel p.
You could be right.
My speculation however is that SCOTUS may want to hand down the Colorado ballot decision and the immunity decision together. The Colorado ballot case, judging from the Justices' questions during the oral argument, looks like it may be 8 to 1 in favor of keeping Trump on the Colorado ballot (the CO primary will have passed by then but the opinion wd apply to the state's general election ballot). The Colorado decision, if it is indeed 8 to 1 or 9 to 0, will have been ready to go for a while by the time early June rolls around. And if the SCOTUS immunity decision is a relatively uncomplicated affirming of the DC Circuit (with possibly the three or four most right-wing Justices dissenting), the majority may say to itself: "heck, these two decisions are ready to go, and the Colorado one has been ready for weeks, so we might as well just release them both together in early June."
This is speculation, of course, but it seems plausible to me. Needless to say, I cd be wrong and things cd work out differently.
DP
I take the point about discovery and jury selection (though w.r.t. the former, isn't a lot of the relevant material already in the public record?). So my speculative timeline may be unrealistic.
Btw while (rightly) blaming the SCOTUS for slowing things down, I notice you're not assigning any blame to the three-judge panel of the U.S. Court of Appeals for the D.C. Circuit. But that panel took longer than necessary to release its 60 page opinion. They could have opted for a shorter opinion and gotten it out the door quicker but they didn't, possibly because the judges on that panel have the judicial equivalent of OCD and wanted to cover every conceivable angle. I don't know for sure, as I haven't read the panel's 60 pp opinion and have no present intention to do so.
I am skeptical of the idea that Trump has enough pull with the command ranks in "the military" to effectuate a coup, especially over widespread public opposition. And I don't see enlisted soldiers in the 21st century obeying orders from low-level flunkies to murder American protesters. I hope I am not just overly optimistic.
And when you think about how amateurish the January 6 "coup" was, no way, Trump is capable of carrying out a real coup.
He's a reality show con man. He's not Pinochet.
September 11, 1973, Chile: by 7 AM the junta was broadcasting by radio and TV that they had taken over. They immediately closed congress, bombed radio stations which refused to transmit their propaganda (within minutes), attacked the presidential palace with tanks and air planes and by early afternoon they had full control of the country. Trump is not capable of that kind of organization and co-ordination: he couldn't even organize an effective election fraud.
LFC,
I agree with you that the DC Circuit took an inordinate amount of time before issuing its opinion. I tended to forgive them after reading it--I thought it was a first-rate job, and foolishly hoped the S.Ct. would simply let it stand by denying cert. Like you, I saw the two cases (presidential immunity and the 14th Amendment) as a perfect opportunity for the S.Ct. to appear to be non-political: each side wins one and loses one.
What I overlooked, and what I suspect is something the Court might have to wrestle with, is the greater complexity of the 14th Amendment case. Oral argument indicated that the entire Court have problems with the 14th Amendment issue, but they didn't indicate a unified rationale. For me the complexity lies in facts such as the differences in the issues presented by each state; the fact that the Presidential election is not so much a Federal election as it is a state action to determine the electoral votes of each particular state; the fact that the states concerned went through evidentiary proceedings and determined, as fact, that Trump engaged in an insurrection or rebellion. Does the Court have to accept the evidentiary findings of fact by the trial court? There are a lot of "Federalism" questions lurking in the 14th Amendment case. That said, it could all be avoided by a simple holding that 14.3 is not self-executing.
Thank you, s. wallerstein, for the dose of historically informed reality.
s.w., one doesn't need the support of the military to do a coup in the United states. In fact we already had one successful coup in 2000 by the Gang of Five on the Supreme Court. The generals fell in line (and had no other option, however they individually felt).
In the instant case,all that was necessary for the coup to succeed was for Pence to get in the car. He then would have been taken to a secure location for his own safety. Senator Grassley was next in line to preside over the count and he was in the tank (based on his own actions and comments) and would have thrown the election to the House where Trump would have prevailed.
Also, had the cadres inserted in the mob been able to get the ballots and damage/destroy them, it would have delayed proceedings for at least a day.
The 2016 election was decided by James Comey, Vladimir Putin, and the New York Times/MSM. A very American coup doesn't need no stinkin' military and a failed coup is called "practice.".
While the military isn't needed, it's useful for an aspiring dictator to have the generals he wants. Senator Tuberville of Alabama (of course) was happy to help and recently held up hundreds of GO promotions.
Interesting segment on CNBC this morning. Their auto guy is in Chile and he did a report on Chinese auto imports (~$9,000 for a basic SUV). They are eating other nations' autos lunch.
aaall,
Call the 2000 election a "coup" if you wish, but Bush was not dictator for life.
I'm contesting Professor Wolff's statement above that if re-elected, Trump will be dictator for life.
I don't see how Trump can achieve that, even if that is his goal. I could even see the U.S. breaking up and Trump might end up as dictator of some ex-red states. I see lots of civil disruption ahead if Trump is elected and many authoritarian measures if he has a majority in both houses of congress.
To become dictator Trump needs the support of the Armed Forces, the CIA, the FBI and
local police forces. He probably could get the support of some police forces in red states, but otherwise no way.
I don't see why the Pentagon and CIA would back a narcissistic bumbler like Trump when the Democrats under Biden have favored the military industrial complex and are much more rational actors, with the capacity for long-term planning.
Other important factors in seizing power are Wall St. and Silicon Valley. I have a few relative and college friends who had or have high level jobs in Wall St. and Silicon Valley and they do not support Trump. They are not billionaires of course, but the whole ethos of Wall St. and Silicon Valley is best represented by corporate Democrats like Biden, not by demagogic wackos like Trump.
aaall,
The key in 2000 wasn't the generals falling in line, it was Gore's doing so. His prompt, public acceptance was key to public acceptance.
DP, my reference to the generals was directed at s.w.'s case. What the generals did was to follow what our laws and norms call for, i.e. this is "political" so business as usual, nothing to see here. Gore filed a brief with the Supremes so he acknowledged that they had a role - with the R's controlling Congress, he realistically had no options prior or post. This was an example of the extent to which our system depends on norms and the ease with which bad actors can violate them and get away with it. The five Republicans on the SC wanted a Republican president so they made up stuff and made it so and that is a species of "coup."
s.w., seizing power outside of norms, traditions, and a constitution doesn't require generals, colonels, or tanks, nor does the tenure of the usurper really matter. Dole, Gingrich, Mcconnell, the Gang of Five all broke things and then went (are going) away (Thomas still remains). The implementation of Schedule F (and the rest of Heritage's 2025 plan) will move the U.S. into a herrenvolk democracy.
Neither Trump nor Biden will likely finish the term. Biden is mentally OK and mostly so physically but 80+ is 80+. Trump is clearly deteriorating mentally and without the makeup he looks not so great physically (and he is pushing 80). The "for life" is irrelevant as a Trump administration would quickly move to make structural, policy, and personnel changes that will difficult to impossible to change. The Chilean model is but one way.
BTW, the next president will have at least one and possibly three Supremes to replace.
This book addresses the key question, really, why are we such an unstable, scary society right now? And the key is Wall Street Greed. The book title is Wall Street’s War on Workers, How Mass Layoffs and Greed are Destroying the Working Class, and What To Do About It. It’s a must read. It’s only 220 pages.
sw,
A question not meant to be picky but looking for a definition. You refer to Biden as a "corporate Democrat." Is a corporate Democrat a non-socialist Democrat, e.g., one that accepts or even values capitalism? If so, there are few, if any, non-corporate Democrats. Even Bernie, who calls himself a socialist, also says he does not advocate government ownership of the means of production.
David Palmeter,
As you know, definitions in politics are not as exact as those in Euclidean geometry.
The last time I checked Bernie was not a Democrat, although he may have signed up. I hope not.
Anyway, Brian Leiter calls the Democratic Party "the prudent wing of the ruling class"
and maybe that's more precise than talking about corporate Democrats.
The prudent wing of the ruling class are those, like Biden, who realize that they have to make gestures from time to time in favor of workers and the poor, like walking a union picket line (wow, that was courageous!!!) and even a bit of Keynesian spending, but will do nothing to threaten the power of the current capitalist ruling elite. I do recall that earlier in his career Biden was known as the senator from the credit card industry, by the way.
The Republicans, especially the libertarian wing, make no gestures in favor of the workers and the poor and are completely shameless in their support of higher profits for capitalists.
People like Bernie, on the other hand, do talk about taxing the billionaires (or at least he used to) and about countering the incredible power of Wall St.
Since people like Biden (and before you jump on me, I will affirm once again that he's infinitely better than Trump) do nothing to counter Wall St. and Silicon Valley, from what I can see, the ruling capitalist elite of Wall St. and Silicon Valley have no problems with Biden and in many cases support him against Trump because they see, as you and I do too, that Trump is a gangster, incompetent and will lead the U.S. to disaster (which is not good for business), while Biden assures business as usual and the status quo.
I'm sure that there are some ultra-rightwing libertarian billionaires who support Trump,
but as we can see from what is happening in Argentina with the newly elected libertarian president, Javier Milei, libertarian capitalism is just a recipe for disaster.
sw
Thanks for the clarification. I have the sense that terms like “corporate” often have a negative connotation when used to describe a politician. Another term that often seems to carry a negative connotation is “elite.” Someone who says another individual is a member of the corporate elite is not praising that individual
David Palmeter,
"Elite" for me does not carry negative connotations. When I say that MIT is an elite university, I mean that it is of excellent academic quality.
As for the word "corporation" used to describe politicians, yes, it has a negative connotation.
I'm not a Biden fan. Biden seems like someone I've known since high school, whom I detested in high school and who detested me, just as Bernie seems like someone I've known since high school and whom I was friendly with and who was friendly towards me.
Obviously, one's visceral dislike of or liking for a politician should not determine's one's voting options and so I will repeat that Biden is the best option on the ballot in
2024.
Anonymous, here I saw this YouTube video and thought given your post that you may like it. Yes, you may already have seen it or already know about Gretchen Morgenson's book: These Are the Plunderers. https://www.youtube.com/watch?v=shv9g-4xXww&t=489s
This is interesting: Camilla Harris is speaking and has called for a cease fire in Gaza, something I can't imagine she would do unless Biden cleared it. Interesting article:
https://www.lrb.co.uk/the-paper/v46/n05/pankaj-mishra/the-shoah-after-gaza
" I do recall that earlier in his career Biden was known as the senator from the credit card industry, by the way."
Delaware corporate law has long (i.e. well before Biden's time) been favorable to corporations hence many corporations choose to form under that state's laws which favor shareholders (the state's Chancery Court just schooled Elon Musk and Tesla's BOD over a ridiculous compensation package). Any elected official from/in that state will be mindful of that fact.
I'm not sure "Wall Street" is even a thing anymore (e.g. some folks like Warren Buffet and Bill Gates have allowed that raising billionaires' taxes would be a good thing). "...the ruling capitalist elite of Wall St. and Silicon Valley..." aren't as relevant as the "millionaire next door." Far more relevant as a political actor is the white, middle-aged dude who owns the only auto dealership in the county (which he inherited from his father who got it from his father). There are lots of Harlan Crows around the country that most of us have never heard of (it seems Harlan's daddy did the hard work).
After the Liberty League and before Powell's infamous letter, wealthy (and regular folks stirred up by Viguerie's letters) contributed millions and formed organizations to advance conservative causes and take over the Republican Party.
It was a reclusive mid-western billionaire who left Leonard Leo's network well over a billion dollars. Then there's all that dark money.
The focus would better be on ALEC:
https://alec.org/about/leadership/
and Heritage:
https://www.heritage.org/board-trustees
ALEC is out to remake the Constitution (among other deviltry),
https://balkin.blogspot.com/2024/02/increasingly-brazen-article-v.html
and Heritage is planning our brave new world,
https://www.project2025.org/
and then there's the Kochs. Talking "Wall Street" and "ruling class" is so 19th century.
(The father of a family friend was way far-right. He was a dentist as was his son who recently died. I knew they were well off but probate reveled a just into nine figure estate. A few decades ago when I lived in a So Cal beach city I was talking to a neighbor who was a retired farmer from Kansas. He related that his wife was recovering from a stroke and he had to sell ONE of his sections to help pay for the care (a section is a square mile). Lots of non-elite, common clay money out there.
Referring to the Democratic Party as "the prudent wing of the ruling class" is dated and conveniently elides the fact that the other party has veered into serious herrenvolkery and is headed towards full fascism as well as appearing to be in thrall to foreign dictators.
From a blog post I wrote in 2016, drawing on Rick Perlstein's Before the Storm (a book I began but never finished):
"One thing (among others) that comes through clearly in the first 50 pp. or so of the book is the extent to which the emergent or reconstituting U.S. Right in the [19]50s and early 60s found a key constituency in family-owned and/or privately-held manufacturing and other businesses, a sector that still exists but is presumably a good deal smaller today than it was then."
Actually I don't know for sure if that sector is all that much smaller today (that's why I said "presumably"). Link to the full post in case anyone's interested:
https://howlatpluto.blogspot.com/2016/03/reading-notes.html
To aaall:
Is it sooooo hard to get Kamala Harris's first name right?
Oops! Thanks.
BTW, folks at LGM reminded me of this:
https://thebaffler.com/salvos/the-long-con
Aaall raises something that’s long bothered me too: how to keep our terminology (and especially our terms of abuse!) fresh. “Wall Street” as shorthand is inaccurate, but worse than that it’s stale—it always brings to my mind the image of “Rich Uncle Millburn Pennybags”, the Monopoly game mascot and his proto-PMC cousin “Esky”. Moreover, fulminating against “Wall Street” approaches self-parody. Use of these terms causes your listener to first involuntarily roll his eyeballs heavenward, and then down to the ground (to check and see if you are wearing your Birkenstocks-with-socks combo today).
My own pet peeve: “Working Class”. Insofar as most of the “work” that this class did historically was either shipped overseas or south of the border, or evaporated under the hot sun of automation, using this term implies a continuity that is just not there… but what term do we use instead? Balkanized Gig Proletariat? (You can see the problem.)
Insofar as “the Left” finds itself at year zero (for the 50th year in a row … maybe it’s “Year Zero Minus Fifty”?), I submit that we can and should revamp our terms. I know that the generalized aversion to vibrant language that obtains in modernity is amplified a hundred-fold in our tribe, but we ought to give it a try.
Fwiw I'm inclined to think that the phrase "Wall Street" is still an adequate shorthand for a particular (and powerful) sector of the U.S. economy.
Some terminology is linked, however attenuatedly, to quite comprehensive efforts to understand the human condition (which is why, I suppose, Professor Wolff thinks it worthwhile to offer yet another course on Marx). Other terminology, such as that proposed by john p., seems to me to be unlinked to anything other than things today's pundits might put out there when they're trying to appear "with it" (another dated bit of verbiage, I suppose, but I'm too lazy to bother trying to come up with some 21st C revamping of my vocabulary that will intimate I'm au courant with the contemporary zeitgeist). Despite its theoretical shallowness "Wall Street" still seems to retain some propaganda value.
Pillette,
Since our terminology is so out-dated and stale, why don't you, being a creative spirit,
help us to renew it?
Suggestions? If you can help us out, we'll all be very thankful and use your newly minted vocabulary in future comments.
Given Prof. Wolff's longstanding concerns re nuclear war, if he's not already aware of it, he might find the following interesting--it's the beginning essay in a series issuing from the NYT (warning, one does need to keep on scrolling down even when it seems one has come to a halt)
https://www.nytimes.com/interactive/2024/03/04/opinion/nuclear-war-prevention.html
s.w., perhaps the problem is that stale slogans lead to ineffective action. E.g. while the Occupy folks were killing it with drum circles and talking sticks, quants were still beavering away in Boston and L.A. while their managers still got their carried interest. "Wall Street" was a thing when there were bucket shops and J.P. Morgan could ask Jesse Livermore to please close his short trades so the economy wouldn't crash. We need to move on.
There was an interesting exchange on CNBC this AM. Secretary Buttigieg was being interviewed by the wing nut host who was carrying on in a loud and animated manner about immigration. Pete then related how there was a bill and Republicans in Congress tanked it at Trump's request. The host stammered and looked rather stupid.
LFC, indeed, there are ~8,000 traded companies and lots more of privately held ones, some of which will eventually go public (McDonald's was once a single burger joint in San Bernardino and Home Depot was two stores in Atlanta - both founded by right wingers).
aaall,
There's still a Wall St. Journal just as there's still a New York Times.
New York has changed a lot since the newspaper was founded in 1851 and Wall St. has changed a lot since the publication was founded in 1889, but the names still signify something, although something different than they did a hundred years ago or even 10 years ago.
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And these are the words of a well-known American political philosopher??
"if he won, the rule of law would end and he would be dictator for life."
"he would simply refuse to abide by the decision and deploy the military to quell any attempt to force him to abide by it."
One can utter such sentences only if one does not understand the entire system of the American political decision-making. It's sad and troubling to hear it from a man who should know MUCH better...
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