Clarence Thpmas

Presidential immunity is a brand new doctrine. “The President is now a king above the law.”

by

Heather Cox Richardson | Letters from an American

Heather Cox Richardson

July 3, 2024

Today the United States Supreme Court overthrew the central premise of American democracy: that no one is above the law. 

It decided that the president of the United States, possibly the most powerful person on earth, has “absolute immunity” from criminal prosecution for crimes committed as part of the official acts at the core of presidential powers. The court also said it should be presumed that the president also has immunity for other official acts as well, unless that prosecution would not intrude on the authority of the executive branch.

This is a profound change to our fundamental law—an amendment to the Constitution, as historian David Blight noted. Writing for the majority, Chief Justice John Roberts said that a president needs such immunity to make sure the president is willing to take “bold and unhesitating action” and make unpopular decisions, although no previous president has ever asserted that he is above the law or that he needed such immunity to fulfill his role. Roberts’s decision didn’t focus at all on the interest of the American people in guaranteeing that presidents carry out their duties within the guardrails of the law. 

But this extraordinary power grab does not mean President Joe Biden can do as he wishes. As legal commentator Asha Rangappa pointed out, the court gave itself the power to determine which actions can be prosecuted and which cannot by making itself the final arbiter of what is “official” and what is not. Thus any action a president takes is subject to review by the Supreme Court, and it is reasonable to assume that this particular court would not give a Democrat the same leeway it would give Trump. 

There is no historical or legal precedent for this decision. The Declaration of Independence was a litany of complaints against King George III designed to explain why the colonists were declaring themselves free of kings; the Constitution did not provide immunity for the president, although it did for members of Congress in certain conditions, and it provided for the removal of the president for “high crimes and misdemeanors”—what would those be if a president is immune from prosecution for his official acts? The framers worried about politicians’ overreach and carefully provided for oversight of leaders; the Supreme Court today smashed through that key guardrail. 

Presidential immunity is a brand new doctrine. In February 2021, explaining away his vote to acquit Trump for inciting an insurrection, Senate minority leader Mitch McConnell (R-KY), who had also protected Trump in his first impeachment trial in 2019, said: “Trump is still liable for everything he did while he was in office…. We have a criminal justice system in this country. We have civil litigation, and former presidents are not immune from being held accountable by either one.”

But it was not just McConnell who thought that way. At his confirmation hearing in 2005, now–Chief Justice John Roberts said: “I believe that no one is above the law under our system and that includes the president. The president is fully bound by the law, the Constitution, and statutes.” 

In his 2006 confirmation hearings, Samuel Alito said: “There is nothing that is more important for our republic than the rule of law. No person in this country, no matter how high or powerful, is above the law.” 

And in 2018, Brett Kavanaugh told the Senate: “No one’s above the law in the United States, that’s a foundational principle…. We’re all equal before the law…. The foundation of our Constitution was that…the presidency would not be a monarchy…. [T]he president is not above the law, no one is above the law.”

Now they have changed that foundational principle for a man who, according to White House officials during his term, called for the execution of people who upset him and who has vowed to exact vengeance on those he now thinks have wronged him. Over the past weekend, Trump shared an image on social media saying that former Representative Liz Cheney (R-WY), who sat on the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol, was guilty of treason and calling for “televised military tribunals” to try her. 

Today, observers illustrated what Trump’s newly declared immunity could mean. Political scientist Norm Ornstein pointed out that Trump could “order his handpicked FBI Director to arrest and jail his political opponents. He can order the IRS to put liens on the property of media companies who criticize him and jail reporters and editors.” Legal analyst Joyce White Vance noted that a president with such broad immunity could order the assassination of Supreme Court justices, and retired military leader Mark Hertling wrote that he was “trying to figure out how a commander can refuse an illegal order from someone who is issuing it as an official act.” 

Asha Rangappa wrote: “According to the Court, a President could literally provide the leader of a hostile adversary with intelligence needed to win a conflict in which we are involved, or even attack or invade the U.S., and not be prosecuted for treason, because negotiating with heads of state is an exclusive Art. II function. In case you were wondering.” Trump is currently under indictment for retaining classified documents. “The Court has handed Trump, if he wins this November, carte blanche to be a ‘dictator on day one,’ and the ability to use every lever of official power at his disposal for his personal ends without any recourse,” Rangappa wrote. “This election is now a clear-cut decision between democracy and autocracy. Vote accordingly.”

Trump’s lawyers are already challenging Trump’s conviction in the election interference case in which a jury found him guilty on 34 counts. Over Trump’s name on social media, a post said the decision was “BRILLIANTLY WRITTEN AND WISE, AND CLEARS THE STENCH FROM THE BIDEN TRIALS AND HOAXES, ALL OF THEM, THAT HAVE BEEN USED AS AN UNFAIR ATTACK ON CROOKED JOE BIDEN’S POLITICAL OPPONENT, ME. MANY OF THESE FAKE CASES WILL NOW DISAPPEAR, OR WITHER INTO OBSCURITY. GOD BLESS AMERICA!”

In a concurring opinion, Justice Clarence Thomas, whose wife was deeply involved in the effort to overturn the 2020 presidential election, also took a shot at the appointment of special counsels to investigate such events. Thomas was not the only Justice whose participation in this decision was likely covered by a requirement that he recuse himself: Alito has publicly expressed support for the attempt to keep Trump in office against the will of voters. Trump appointed three of the other justices granting him immunity—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—to the court.

In a dissent in which Justices Elena Kagan and Ketanji Brown Jackson concurred, Justice Sonia Sotomayor wrote that because of the majority’s decision, “[t]he relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.”

“Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop. With fear for our democracy,” she wrote, “I dissent.” 

Today’s decision destroyed the principle on which this nation was founded, that all people in the United States of America should be equal before the law.

The name of the case is “Donald J. Trump v. United States.” 

“Come hell or high water,” NY trial begins as Trump faces “corporate death penalty”

by

Heather Cox Richardson | Letters from an American

Heather Cox Richardson

October 3, 2023

The trial of former president Trump, his oldest sons, two associates, and the Trump Organization began today in Manhattan. Jose Pagliery, political investigations reporter for The Daily Beast, noted that the presiding judge, New York Supreme Court Justice Arthur Engoron, started with a reference to Friday’s rainstorm that flooded New York City, saying: “Weeks ago, I said we would start today ‘come hell or high water.’ Meteorologically speaking, we’ve had the high water.”

New York Attorney General Letitia James launched the investigation in 2019 after Trump fixer Michael Cohen testified before Congress that Trump had been engaging in fraud by inflating the value of his property. Last week, Justice Engoron issued a partial decision establishing that the organization and its executives committed fraud. Engoron canceled the licenses under which the organization’s New York businesses operated, provided for those businesses to be dissolved, and provided for an independent monitor to oversee the company. 

With that major point already established, the trial that began today will establish how much of the ill-gotten money must be given up, or “disgorged,” by the defendants and whether they falsified records or engaged in insurance fraud in the process of committing fraud. James has asked for a minimum of $250 million in disgorgement, along with a ruling permanently prohibiting Trump and his older sons from doing business in New York, and a five-year ban on commercial real estate transactions for Trump and the organization. 

Trump is attending the trial in person, likely because, as Pagliery noted, he cited this trial as the reason he couldn’t show up for two days of depositions in his federal case against Michael Cohen. If he didn’t show up, he would be in contempt of court. So he is there, but his goal in all his legal cases seems to be to play to the public, where his displays of victimization and dominance have always served him. 

He has already said it is “unfair” that he isn’t getting a jury trial in New York, but his lawyers explicitly said they did not want one, possibly because a bench trial gives Trump a single judge to attack rather than a jury. Today, his lawyer Alina Habba, who along with her law firm and Trump has been fined close to $1 million by a federal judge for filing a frivolous lawsuit, gave a fiery opening statement aimed at “the American people” rather than the judge. When the court broke for lunch, Trump went straight to reporters to rail at the prosecutors holding him to account.

Historian Lawrence Glickman noted that the press is emphasizing Trump’s anger at the proceedings as if a defendant’s anger matters, but it is starting to feel as if bullying and bluster to get away with breaking the rules is not as effective as it used to be. Legal analyst Lisa Rubin notes that this case is a form of “corporate death penalty” that strikes at his wealth and image, both of which are central to his identity and to his political power.

And it is not just Trump; another case announced on Friday suggests the era of real estate crime is ending. The Department of Justice announced that a California real estate executive had pleaded guilty the previous day to a multi-year scheme that looked a lot like the one Trump’s organization is charged with: fraudulently inflating the value of real estate holdings of a Michigan company in order to defraud lenders. 

“My office will not hesitate to prosecute those who lie in order to engage in financial crimes, regardless of the titles they may have,” said U.S. Attorney for the Eastern District of Michigan Dawn N. Ison.

The drive for the impartial application of the rule of law is showing up among the Democrats, as they seek to illustrate the difference between them and the Republicans. New Jersey Democratic senator Bob Menendez is insisting that the federal indictment against him and his wife for bribery, fraud, and extortion in exchange for helping Egypt is a political smear campaign, but more than half of Democratic senators have called on him to resign. 

Trump is increasingly being held to account by former staff, as well. In the wake of his attacks on former chairman of the Joint Chiefs of Staff General Mark Milley, Trump’s former chief of staff Marine Corps General John Kelly went on the record today with Jake Tapper of CNN, confirming a number of the damning stories that emerged during Trump’s presidency about his denigration of wounded, captured, or killed military personnel as “suckers” and “losers,” with whom he didn’t want to be seen. 

Kelly called Trump: “A person that has no idea what America stands for and has no idea what America is all about. A person who cavalierly suggests that a selfless warrior who has served his country for 40 years in peacetime and war should lose his life for treason—in expectation that someone will take action. A person who admires autocrats and murderous dictators. A person that has nothing but contempt for our democratic institutions, our Constitution, and the rule of law…. There is nothing more that can be said,” he added. “God help us.”

The confirmation of Trump’s attacks on wounded or killed military personnel will not help his political support. After reading Kelly’s remarks, retired Army Major General Paul Eaton, a key advocate for veteran voting, released a video he recorded more than two years ago when he first heard the stories about Trump’s attack on the military. “Who could vote for this traitor Trump?” he asked on social media. In the video, Eaton urges veterans to “vote Democratic,” because “our country’s honor depends on it.” 

That Trump is concerned about his ebbing popularity showed tonight when his campaign released a statement demanding that the Republican National Committee cancel all future debates and focus on Trump’s evidence-free allegations that the Democrats are going to steal the 2024 election. If it refuses, the statement says, it will just show that national Republicans are “more concerned about helping Joe Biden than ensuring a safe and secure election.” 

Popular pressure against the extremism of the Republican Party showed up today when Supreme Court Justice Clarence Thomas recused himself from participating in a case related to the January 6, 2021, attack on the U.S. Capitol. Thomas’s wife, Ginni, was a staunch supporter of Trump’s attempt to overturn the results of the 2020 election, and in the past, Thomas had voted on related cases nonetheless. Today’s case involved John Eastman, formerly one of Thomas’s law clerks. 

There were interesting signs today that the tide seems to be turning against the MAGA Republicans elsewhere, too. In an op-ed in the New York Times, former South Carolina representative Bob Inglis told his “Fellow Republicans: It’s Time to Grow Up.” He expressed regret for his votes in 1995 to shut down the government and in 1998 to impeach President Bill Clinton, and for his opposition to addressing climate change on the grounds that if Al Gore was for it, Republicans should be against it. 

But he had come to realize that “the fight wasn’t against Al Gore; it was against climate change. Just as the challenge of funding the government isn’t a referendum on Speaker McCarthy; it’s a challenge of making one out of many—E pluribus unum—and of bringing the country together to do basic things.” He called on Republicans to remember that we must face the huge challenges in our future together: language that echoes President Joe Biden, who has been making that pitch since he took office. 

The fight over funding the government has contributed to growing pressure on the extremists. The chaos in the Republican Party as the factions fought each other with no plan to fund the government until McCarthy finally had to rely on the Democrats for help passing a continuing resolution was a sign that the extremists’ power is at risk. 

Today, there was much chafing over the threats of Representative Matt Gaetz (R-FL) to challenge Speaker Kevin McCarthy of California, and he actually did it this evening, although it is not clear that he has the votes either to remove McCarthy or to prevent his reelection as speaker. What is clear is that Gaetz is forcing a showdown between the extremists and the rest of the party, and while such a showdown is sure to garner media attention, it is unlikely to leave the extremists in a stronger position.

Indeed, when he left the floor after making the motion to vacate the chair, some Democrats laughed.

Historic strike in Michigan, historic corruption in SCOTUS

by

Heather Cox Richardson | Letters from an American

Heather Cox Richardson

September 23, 2023

Two major stories today seem to bring together both the past and the future of the country to chart a way forward.

The first involves a historic workers’ strike. A week ago, on Friday, September 15, after workers’ four-year contracts expired, the United Auto Workers union declared a limited and targeted work stoppage in which about 13,000 workers walked off the job at three Midwestern auto plants. For the first time in history, those walkouts included all three major automakers: workers left a General Motors plant in Missouri, a Stellantis (which includes Chrysler) plant in Ohio, and a Ford plant in Michigan. 

Workers accepted major concessions in 2007, when it appeared that auto manufacturers would go under. They agreed to accept a two-tier pay system in which workers hired after 2007 would have lower pay and worse benefits than those hired before 2007. But then the industry recovered, and automakers’ profits skyrocketed: Ford, for example, made more than $10 billion in profits in 2022.

Automakers’ chief executive officers’ pay has soared—GM CEO Mary Barra made almost $29 million in 2022—but workers’ wages and benefits have not. Barra, for example, makes 362 times the median GM employee’s paycheck, while autoworkers’ pay has fallen behind inflation by 19%. 

The new UAW president, Shawn Fain, ran on a promise to demand a rollback of the 2007 concessions in this summer’s contract negotiations. He wants a cap on temporary workers, pay increases of more than 40% to match the salary increases of the CEOs, a 32-hour workweek, cost of living adjustments, and an elimination of the tier system. 

But his position is not just about autoworkers; it is about all U.S. workers. “Our fight is not just for ourselves but for every worker who is being undervalued, for every retiree who’s given their all and feels forgotten, and for every future worker who deserves a fair chance at a prosperous life,” Fain said. “[W]e are all fed up of living in a world that values profits over people. We’re all fed up with seeing the rich get richer while the rest of us continue to just scrape by. We’re all fed up with corporate greed. And together, we’re going to fight to change it.”

Fain has withheld an endorsement for President Biden out of concern that the transition to electric vehicles, which are easier to build than gas-powered vehicles, will hurt union jobs, and out of anger that the administration has offered incentives to non-union plants. That criticism created an opening for Republican presidential candidate Donald Trump to announce he would visit Detroit next week to show autoworkers that he has “always had their back,” in hopes of winning back the support of Rust Belt states.

But for all his talk of being pro-worker, Trump recently attacked Fain, saying “The autoworkers are being sold down the river by their leadership, and their leadership should endorse Trump.” Autoworkers note that Trump and the justices he put on the Supreme Court have been anti-union, and that he packed the National Labor Relations Board, which oversees labor laws and union elections, with officials who reduced the power of workers to organize. Before he left office, Trump tried to burrow ten anti-labor activists into the Federal Service Impasses Panel, the panel in charge of resolving disputes between unions and federal agencies when they cannot resolve issues in negotiations. 

Fain recently said: “Every fiber of our union is being poured into fighting the billionaire class and an economy that enriches people like Donald Trump at the expense of workers.” 

President Biden prides himself on his pro-union credentials, and as soon as he took office, he fired Trump’s burrowed employees, prompting the head of the union representing 700,000 federal employees to thank Biden for his attempt to “restore basic fairness for federal workers.” He said, “The outgoing panel, appointed by the previous administration and stacked with transparently biased union-busters, was notorious for ignoring the law to gut workplace rights and further an extreme political agenda.”

Today, in the absence of a deal, the UAW expanded the strike to dozens more plants, and in a Facebook live stream, Fain invited “everyone who supports our cause to join us on the picket line from our friends and families all the way up to the president of the United States.” Biden has generally expressed support for the UAW, saying that the automakers should share their record profits with their workers, but Fain rebuffed the president’s offer to send Labor Secretary Julie Su and White House senior advisor Gene Sperling to help with negotiations. 

Senators Bernie Sanders (I-VT) and John Fetterman (D-PA) have both visited Michigan to meet with UAW workers, but it was nonetheless a surprise when the White House announced that the president will travel on Tuesday to Michigan, where he will, as he posted on X, “join the picket line and stand in solidarity with the men and women of UAW as they fight for a fair share of the value they helped create. It’s time for a win-win agreement that keeps American auto manufacturing thriving with well-paid UAW jobs.”

If President Biden is showing his support for the strong unions of the past, Vice President Kamala Harris is in charge of the future. The White House today announced the establishment of a National Office of Gun Violence Prevention, to be overseen by the vice president. 

Lately, Harris has been taking the lead in embracing change and appealing to younger voters. On September 9 she hosted a celebration honoring the 50th anniversary of hip hop, and she is currently in the midst of a tour of college campuses to urge young people to vote. She has been the administration’s leading voice on issues of reproductive rights and equality before the law, issues at the top of concerns of young Americans. Now adding gun safety to that list, she is picking up yet another issue crucially important to young people. 

When 26-year-old Representative Maxwell Frost (D-FL) introduced the president today, he said that he got involved in politics because he “didn’t want to get shot in school.”

If the president and the vice president today seemed to represent the past and the future to carry the country forward, the present was also in the news today, and that story was about corruption and the parties’ different approaches to it.

ProPublica has published yet another piece about Supreme Court Justice Clarence Thomas’s connections to wealthy donors. Joshua Kaplan, Justin Elliott, and Alex Mierjeski reported that Thomas attended at least two donor summits hosted by the Koch family, acting as a fundraising draw for the Koch network, but did not disclose the flights he accepted, which should have been considered gifts, or the hospitality associated with the trips. His appearances were coordinated with the help of Leonard Leo of the Federalist Society, who has been behind the court’s rightward swing.

The Koch family network funds a wide range of right-wing political causes. It has had interests in a number of cases before the Supreme Court during Thomas’s term, including an upcoming challenge to the government’s ability to regulate businesses—a principle the Koch enterprises oppose. 

Republicans have been defending Thomas’s behavior since these stories began to surface. 

Also in the corruption file today is Senator Bob Menendez (D-NJ), who, along with his wife, has been indicted by a federal grand jury in New York on three counts of conspiracy to commit bribery, conspiracy to commit honest services fraud, and conspiracy to commit extortion in connection with using his influence to advance the interests of Egypt. 

This is Menendez’s second legal go-round: in 2015 he was indicted on unrelated charges of bribery, trading political help for expensive plane flights and luxury vacations. Ten of the twelve members of the jury did not agree with the other two that he was guilty and after the hung jury meant a mistrial, the Department of Justice declined to retry the case. 

That the DOJ has indicted Menendez again on new charges undercuts Republicans’ insistence that the department has been weaponized to operate against them alone. And while Menendez insists he will fight the charges, he has lost his position at the head of the Senate Foreign Relations Committee under the rules of the Democratic Conference, and New Jersey Democratic leaders have already called on him to resign.

“So a Democratic Senator is indicted on serious charges, and no Democrats attacking the Justice Department, no Democrats attacking the prosecutors, no Democrats calling for an investigation of the prosecution, and no Democrats calling to defund the Justice Department,” wrote former Republican representative from Illinois and now anti-Trump activist Joe Walsh. 

“Weird, huh?