We have several times expressed the hope that the cases arising out of the hysterical left’s pile-on charges against Donald Trump would ultimately give the United States Supreme Court the opportunity to pass on the blatant weaponization of the criminal justice system by the Biden administration and the prosecutorial overreach they represent. The oral argument last Thursday in a case involving criminal charges that he tried to subvert the 2020 election seems to have provided that very opportunity.
We have said over and over, that Donald Trump was not the issue, but that it behooved all of us, even the most diehard anti-Trumpers, to be concerned about the blatant targeting of predecessor political enemies by those who succeeded them in office. We suggested that if this issue is left to fester, we would soon join the ranks of the world’s “banana republics” with office holders fearful of fulfilling their duties.
So, we were encouraged when several months ago the Supreme Court agreed to address the question of whether, and if so to what extent, does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.
Yet, as the New York Times legal commentator Adam Liptak noted, former President Trump’s claim to be immune from prosecution was widely ridiculed as “Alice in Wonderland” talk. Most “experts” had said his aim was merely part of an effort to delay his trial to face criminal charges that he tried to subvert the 2020 presidential election. And this seemed to reflect the conventional wisdom as well.
But lo and behold, Liptak reported that at the oral argument last week, members of the Court’s conservative majority treated the Trump assertion of immunity as “a weighty and difficult question.” And he went on to quote Justice Samuel Alito who prefaced his questions with a short discussion of what “is required for the functioning of a stable democratic society, which is something we all want…”
He went on to say:
“If an incumbent who loss a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle of that destabilizes the functioning of our country as a democracy?
“…And we can look around the world and find countries where we have seen this process, where the loser gets thrown in jail. around the world and find countries where we have seen the process where the loser gets thrown into jail.”
Justice Kavanaugh said the Court must think about the larger message of its decision: “This case has huge implications for the presidency, for the future of the presidency, for the future of the country…. It’s going to cycle back and forth and be used against the current president or the next president.”
On the other hand, liberal Justice Ketanji Brown said: “If the potential for criminal liability is taken of the table, wouldn’t there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they are in office?”
Justices are not bound by their comments during oral argument. But it is clear that they all get what’s at stake. Perhaps we are at last moving forward on this momentous issue.
