Trump Melts Institutions, SCOTUS Edition

The Supreme Court's no-win situation and the healthy liberalism we need.

No topper to ease you in today; too much to get through. Happy Friday.

---

(Composite by Hannah Yoest / Photos: Getty Images.)

Where’s SCOTUS Going?

How much should people freak out over Thursday’s SCOTUS oral arguments about Trump’s claims that he can’t be prosecuted for election crimes due to presidential immunity? The Bulwark legal brain trust has diverging opinions.

Here was Kim Wehle, writing for the site yesterday:

Judging by their questions, what the conservative [justices] are evidently willing to do is manufacture some form of criminal immunity that will be governed by a private-versus-official conduct standard (with only official conduct protected), and then send the case back to District Judge Tany Chutkan to parse Special Counsel Jack Smith’s January 6th indictment of Trump and excise the parts for which Trump would be protected under the Court’s newly minted criminal immunity test. How the court will draw the line between official and private conduct is anyone’s guess, particularly if presidents abuse official powers for purely personal gain. That would be a win for the insurrectionist-in-chief . . . 

Anything but the narrowest immunity doctrine would mean far broader protections for future presidents seeking to dodge accountability for bad deeds. Depending on how the Court writes its opinion—and how far future presidents, White House counsels, attorneys general, and Department of Justice lawyers are willing to stretch their words—large swaths of presidential action that were unimaginable before Trump could become not just real but protected.

“We’re seeing the belt and suspenders of the office of the presidency are going to expand with this decision,” Kim added on last night’s Thursday Night Bulwark. “Which is ironic, because they’re expanding the president’s power in response to January 6th, the horrors of that day. That is producing, not constraints on a president’s power, but enhancement of a president’s power to do things without any accountability.”

But on George Conway Explains It All (to Sarah Longwell), George Conway pushed back on that position on a couple points. First, he argued, the justices’ probing questions about whether there could or should be a distinction between a president’s official and private acts didn’t necessarily indicate they were gearing up to make that distinction official: “Sometimes you’ll see courts engage in these wide-ranging discussions and not a hint of it shows up in the opinion.” But he also made the case that people shouldn’t discount the notion of some form of official-act immunity altogether:

I do not think that the Court is taking Trump’s specific claims that he is being mistreated and that he should not be prosecuted for what he did as alleged in this indictment—I do not think that there are five votes to sustain Trump’s position. I do think that in making the arguments that he should have this absolute immunity, he is raising some concerns that are legitimate—that there could be abusive prosecutions if you had the wrong kind of president in the future. And those are worthy of concern.

---

Trump Breaks Institutions

All this is necessarily speculative; reading the tea leaves of oral arguments is always an exercise in guesswork. Hopefully SCOTUS won’t be long in unveiling their opinion on the matter.

But one other thing is worth saying: It’s completely understandable that so many people’s first instinct was to roll their eyes at the Court’s apparent interest in using this case to trace out the complex contours of any newly explicit presidential right to official-act immunity—given the remarkable hubris of Trump’s bringing those arguments in the first place.

After all, here’s a guy who, during his second impeachment, explicitly argued that prosecuting an ex-president was the role of the criminal courts: “a president who left office is not in any way above the law,” his lawyers argued, “as the Constitution states he or she is like any other citizen and can be tried in a court of law.”

Now Trump articulates just the opposite position: No act that is “official” in form—which, his lawyers have had to admit during arguments, would include such acts as ordering the military to carry out a coup—can be criminally prosecuted after he leaves office unless he was first convicted in an impeachment trial for that conduct. How any president enjoying such expansive power could ever be impeached by a Congress he could apparently order murdered without consequence remains unclear.

It’s a ridiculous exercise, a transparent stalling tactic. For Team Trump, just getting the argument in front of SCOTUS was a victory in and of itself, further diminishing the odds of a jury getting to rule on Trump’s stolen-election charges before the November election. “Literally popping champagne right now,” one lawyer close to Trump told Rolling Stone when the court announced it would consider the immunity claim in February. This week, RS quoted another Trump source that it hardly matters what the court does now: “We already pulled off the heist.” 

At the same time, no matter how transparent Trump’s run-out-the-clock motivations in bringing the petition to the Court, it’s true that the claims of presidential immunity at hand have never been litigated. The justices are highly unlikely to endorse Trump’s theory that every presidential act that is official “in form” is exempt from prosecution—but are some presidential acts immune? What is the line between a president acting in his capacity as president and acting in his capacity as a candidate or private citizen? And could it be true—as Trump’s lawyers have argued—that opening up too broad a swath of presidential actions to post-presidency prosecution could hamper a president’s ability to run the country effectively?

The Court seemed keenly aware that these questions will reverberate beyond the present moment. “This case will have effects that go far beyond this particular prosecution,” Justice Samuel Alito said at one point. Justice Neil Gorsuch seemed to agree: “We are writing a rule for the ages.” So did Justice Brett Kavanaugh: “This case has huge implications for the presidency, for the future of the presidency, for the future of the country.”

We’ll just say this: These are the sort of damned-if-you-do/damned-if-you-don’t situations a powerful and utterly self-centered demagogue puts a nation into. It’s bad for the country for its highest court to have to hold two noble goals—establishing a careful new legal standard for presidential prosecution going forward, holding Trump accountable now—in tension with one another. That Trump orchestrated this situation deliberately is just the latest reminder that, in his mind, American institutions exist only for him to exploit to his own selfish ends, no matter how much chaos he creates in doing so.

—Andrew Egger

---

---

Liberalism, After All

God, we need a healthy and vigorous liberalism here in America.

Conservatism can no longer cut it. American conservatism was once at least in part committed to the defense of liberal democracy. Now conservatism has degenerated into rabble-rousing populism in politics, anti-intellectualism in ideas, and Know-Nothingism in civic life.

Accordingly, originalism in the courts has become sophism. A real case for democratic capitalism has become the mere defense of oligarchic power and economic privilege. A necessary critique of mindless progressivism has become hostility to anything emerging from any liberal precinct, reasonable or not. A mostly healthy fighting spirit has become a partisanship that knows no bounds and that acknowledges no enemies to the right.

In foreign policy, hostility both to American world leadership and to free nations around the world has replaced a commitment to a tough-minded defense of liberty.

Or, to put it more simply: American conservatism has died in Trumpism.

Liberalism is in better shape today than conservatism. But it’s far from robust good health.

In the political arena, with a few exceptions, one doesn’t feel that today’s liberalism features a whole lot in the way of a spirit of experimentation and fresh thinking. Instead it seems all too often an exhausted and exhausting attempt to drag every liberal agenda item of the last several decades across some imaginary finish line.

In general, one looks at today’s liberalism and one still feels the justice of Harvey Mansfield’s judgment of almost five decades ago, in his The Spirit of Liberalism: “From having been the aggressive doctrine of vigorous, spirited men, liberalism has become hardly more than a trembling in the presence of illiberalism . . .”

And of course one sees the weakness of today’s liberalism most clearly in its strongest redoubt, in the academy, where the Left embraces illiberal protest and mob rule, and the liberal establishment is in response intellectually incoherent and practically ineffectual.

If conservatism dies in Trumpism, liberalism dies on campus.

In 1978, Mansfield asked, “Who today is called a liberal for strength and confidence in defense of liberty?” The question remains powerful now.

But there is a figure who comes to mind who has demonstrated admirable strength and confidence in defense of liberty: Volodymyr Zelensky. And not him alone. Surely the brave men and women of Ukraine, fighting for their country against brutal aggression, and for liberty against tyranny, deserve the praise Winston Churchill offered on January 20, 1940, to the people of Finland: “Finland—superb, nay sublime, in the jaws of peril—Finland shows what free men can do. The service rendered by Finland to mankind is magnificent.”

The service rendered by Ukraine to mankind is magnificent. And Ukraine reminds us what is at stake in the defense of liberal democracy.

After January 6, 2021, we Americans shouldn’t need that reminder. But perhaps a second alarm bell was necessary to awaken us from our 21st-century slumbers. Which is why the (belated) rallying to the support of Ukraine last week by Congress, and the overwhelming votes in both Houses, is so important and hopeful.

Let it be moment when we rediscover strength and confidence in defense of liberty.

—William Kristol

---

---

Catching up . . .

• Army begins building floating aid pier off Gaza’s coast, Pentagon says: New York Times

• Gaza-based militants attack Israeli forces preparing for U.S. pier: Politico

• What to know about David Pecker, the first witness in Trump’s trial: Axios

• Trump’s criminal charges and Biden’s age rank as voters’ top worries about the candidates: NBC News

• Student protests are testing U.S. colleges’ commitment to free speech: Vox

• China warns U.S. of ‘downward spiral’ as Antony Blinken meets with Xi Jinping: NBC News

---

Quick Hits: The Shows

Both the shows we alluded to above are well worth your time. (As always, George Conway Explains It All is a free show, while Thursday Night Bulwark is subscriber-only.)

---

Cheap Shots