We have several times underscored the need for the US Supreme Court to clean up the mess in our judicial system created by Democratic public officials suffering from TDS (Trump Derangement Syndrome). This is the operating principle that everything Donald Trump has done, or will do, was and is presumptively corrupt. And they are aided and abetted by their fellow TDS sufferers on the bench and on juries in blue states who are at the ready to see him convicted of anything he is charged with.
TDS has driven, for example, NYS Attorney General Letitia James and Manhattan District Attorney Alvin Bragg to have centered their respective election campaigns with promises to “get Donald Trump.” And pursue him they did, with an extraordinary vengeance. Indeed, both reached far to find vague, exploitable language in distant statutes that could be creatively applied to wrap around his conduct.
Ditto for the U.S. Department of Justice, whose several efforts along these lines are still notorious works in progress.
It is crucial to appreciate that, precisely because of the elusiveness of the charges, many attribute partisan political motives for the targeting of Trump – a Republican – by Democrats determined to compromise his ability to capitalize on his uncommon magnetism.
And therein lies the tale.
In America, claims of retaliation based upon political rivalry are not favored defenses in our courts and are rarely successful. And the reason is plain. In each instance, the official action taken, whatever the underlying motivation, is packaged as the action of a legally constituted official doing his or her job. And this creates the aura of legitimacy. Thus, while we firmly believe that the cases brought against Trump are blatantly contrived political broadsides, his getting things corrected are another thing.
Yet, on the other hand, we also have the reasonably certain Republican candidate for President standing before the voters charged or convicted of some vague wrongdoing, which half of the country thinks is rooted on retaliatory political partisanship.
So, we were encouraged several months ago when the Supreme Court agreed to take up the issue of presidential immunity. Surely the greater the cloak of immunity available to past presidents, the less the opportunity for politically motivated investigations and prosecutions at the hands of political adversaries. And a decision in the immunity case is expected within the next few days,
But we were encouraged as well by a decision handed down by the Supreme Court last Thursday which suggests that the standards for proving retaliatory action by an official appearing to merely be doing his or her duty are in the process of being scaled downward.
As reported by the New York Times, the case involved a former Texas city councilwoman who was arrested on charges that she had intentionally tampered with government documents, which is a crime under Texas law. However, she said the arrest followed her having placed a petition that she had initiated criticizing the city manager in her binder.
She went on to say that she had accidentally picked up the petition after a long meeting and that the arrest was really retaliation for having criticized the city manager. She noted that she was the only person charged in the past ten years under this particular law and that almost all of the 25 felony indictments under it involved the use or creation of fake government IDs.
However, her case was dismissed because proving a case of retaliation had always required a showing that the arresting officer did not have “probable cause” to believe that the accused intentionally tampered with the documents. And here, the councilwoman was observed scooping up the petition. Therefore, literally, “case closed.”
But the Supreme Court said otherwise: “Because the fact that no one has ever been arrested for engaging in a certain kind of conduct – especially when the criminal prohibition is longstanding and the conduct at issue is not novel – makes it more likely that an officer has declined to arrest someone for engaging in such conduct in the past.”
The councilwoman’s case is not over and will now go through several lower court iterations for refinement. But it does seem that the high court is poised to deal with the problem of getting into the heads of public officials without unduly undermining their authority.
