1. Clarity
I have a theory about the Supreme Court’s reasoning:
Had the subject of presidential immunity come to the High Court concerning any normal president—Ford, Carter, Reagan, Bush, Clinton, Bush, Obama, Biden—I do not believe that it would have produced such a dangerous and destructive decision.
I propose that if such a case had arisen concerning a normal president, this Court would have handed down a limited and carefully circumscribed opinion. They would have tried to establish some zones of immunity for presidents while making sure to leave avenues for accountability open.
In short: If the president under criminal indictment had not been a criminal, then the Court would not have invented Constitutional law to protect him.
Instead, it is only because Trump is an actual criminal that SCOTUS felt the need to create such an expansive regime of legal immunity for the chief executive.
It’s perverse. But there’s also a logic to it.
One of my maxims is that a political party can only be as good as its voters let it be. If voters demand that a party’s politicians be thugs and criminals, then that’s what the pols will be.
In a sort-of similar way: This Supreme Court will only hold the executive branch in check if the president is not a dangerous criminal. If the president is a criminal, then the Court will create rules to protect him precisely because he is a criminal.
It’s a doom loop created by the institutional urge for normalization.
Institutions have a bias for norms. Confronted with a novel situation in which the president is a criminal, the Supreme Court had a choice:
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