Conservative Justices of the United States Supreme Court
Olivier Douliery /AFP via Getty Images
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Olivier Douliery /AFP via Getty Images
Conservative Justices of the United States Supreme Court
Olivier Douliery /AFP via Getty Images
In the wake of the Supreme Court’s nearly three-hour oral argument Thursday, it seems clear that, at a minimum, there will be no trial of Trump for obstruction of the 2020 election before next November’s election.
It may be Trump derangement syndrome that has led many legal scholars, from liberals to conservatives, to believe that former President Donald Trump’s claim of immunity from criminal prosecution was absurd. But it is more likely that judicial observers have not properly considered the personal experiences of conservative judges.
Five of the six conservatives spent much of their lives as Beltway residents. As young men, all five men served in the White House and Justice Department, working for Republican presidents, often viewing their administrations as targets of unfair harassment from Democratic majorities in the House and Senate .
You can hear echoes of those experiences in some of the questions asked Thursday about the conspiracy to defraud the charges against Trump.
The Kavanaugh and Alito experiment
Justice Brett Kavanaugh worked for George W. Bush for five years, including three as staff secretary, a position described as the “nerve center” of the White House. “The conspiracy to defraud the United States can be used against many presidential activities, historically, with a creative prosecutor who wants to go after the president,” Kavanaugh warned.
Indeed, he spontaneously declared that a 1988 case in which the court upheld the now-defunct Independent Lawyers Act was “a terrible decision for the presidency and for the country.”
Justice Neil Gorsuch had a much more personal taste of Washington’s instinct for criminal prosecution, viewing it as a blood sport. Her mother was the first administrator of the Reagan Administration’s Environmental Protection Agency and ultimately became the first agency director in U.S. history to be cited for contempt of Congress. At the time, his son, now a Supreme Court justice, was just a teenager and would have felt the reprimand keenly.
Fast forward to Thursday, when Gorsuch questioned Michael Dreeben, the lawyer representing the special prosecutor, saying he was not concerned about this case, “but I am concerned about future uses of the criminal law to target political opponents on the basis of accusations about their motivations. “
Alito’s Reagan years
There’s also Justice Samuel Alito, who held increasingly senior positions in the Justice Department throughout the Reagan administration in the 1980s.
“Presidents have to make a lot of tough decisions,” Alito told Dreeben. He asked incredulously, “Did I understand you to say, ‘Well, you know, if he makes a mistake, he makes a mistake.’ He is subject to criminal laws like anyone else. » You don’t think he is in a particular, particularly precarious situation?
“Making a mistake is not what gets you criminal charges,” Dreeben responded.
Alito went on to suggest that barring criminal charges against a former president would be a good thing for democracy.
“If an incumbent president who loses a very close and highly contested election knows that there is “a real possibility after leaving office” that instead of being able to “retire peacefully,” he will be criminally prosecuted “by a “won’t this lead us into a cycle that destabilizes the functioning of our country as a democracy?” asked Alito.
Chief Justice John Roberts was not as open in his questions, but when he was a top aide to the attorney general in the Reagan administration, he was often the point man in political controversies.
There’s also the fact that Roberts got through his Senate confirmation hearings, unlike many of his conservative colleagues, including Kavanaugh, Alito and Clarence Thomas.
A skeptical conservative
Only one of the Court’s conservatives expressed doubt about the extent of Trump’s immunity claim. Judge Amy Coney Barrett, ironically the last of three appointees to the court by President Trump, was the only one skeptical of his immunity claims. And she’s relatively new to Washington, having spent most of her adult life in academia at Notre Dame Law School.
She challenged the idea that a president could not be prosecuted for submitting a slate of fake electors to thwart the certification of a new president. And she disputed Trump’s lawyer’s assertion that no former president can be criminally prosecuted unless he or she has first been impeached, convicted and removed from office.
“Many other people are under indictment, including the nine sitting on this bench,” Barrett said, adding that no one has ever suggested that Supreme Court justices could not be prosecuted criminally. “So why is the president any different when the impeachment clause doesn’t say so?” she asked.
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