Revisiting Trump v. U.S.
The Consequences of the Supreme Court's Utter Folly in Giving the President Immunity from Criminal Prosecution
Before the U.S. Supreme Court gave Donald Trump a get-out-of-jail-free card for his role in January 6 and for obstructing an investigation into whether he took highly classified material out of the White House, I thought I understood how the rule of law worked. I thought there were red lines that nine Justices on the Court would observe. Even if it didn’t suit their politics.
I was, of course, wrong.
But in my mind, the argument about Trump’s case went something like this: To grant immunity, the Court would have to hold that presidents are above the law. All presidents, not just Trump. Anything even semi-official they do while they’re president is protected.
We’d seen that same argument rejected repeatedly in a civil context: E. Jean Carroll’s case and the civil suit over January 6 in Washington, D.C., for instance. There was no analytical reason to believe criminal conduct was any more deserving of protection than civil violations, at least not once a president is out of office. Even Mitch McConnell said so, justifying his vote against convicting Trump when he was impeached for January 6.
Part of Trump’s claim was that even absent total immunity for presidential conduct, the conduct he’d been charged with fell within the “outer perimeter” of a president’s duties, so he was entitled to immunity. To credit that, the Court would have to believe that the steps Trump took to interfere with multiple states’ votes, elections a president has no role in running, was somehow a part of his job. Elections are run by secretaries of state and county officials. The president has no say in the final vote count and no duties, core or outer perimeter, to interfere in those counts or the final report of the Electoral College. But the Supreme Court found a way for Trump, protecting his official interactions with Justice Department employees and imposing a new rule that was too much for even Amy Coney Barrett, who dissented from the part of the opinion that said evidence of official acts couldn’t be used in a prosecution of a president to explain or set up the context for crimes committed in a personal capacity.
Beyond that, I reasoned, if the Supreme Court granted Trump’s motion, what would prevent Joe Biden or any future president from doing precisely what Trump did in 2020, but with more skill—and succeeding? Nothing. A decision in favor of Trump would create a rule that presidents could do no wrong, as long as they were crafty about it. Want to rob a bank? As long as you make the plans with your attorney general, you’re immune. Using SEAL Team Six to execute a political enemy? The Supreme Court blew right past that “hypothetical.” At the time, I wanted to use a hypothetical about kidnapping Supreme Court justices whose decisions a president disagreed with, but I was cautioned by friends that it was going too far. I wish I’d pushed that one. Maybe it would have landed.
That was why it seemed clear to me that the Supreme Court would—that it must—deny Trump’s motion to dismiss the charges against him, unless it wanted to end democracy by giving a license to the next president to do whatever it takes to stay in power.
So, how are we doing? The Supreme Court, against the weight of law, history, tradition, and common sense went there. Trump 2.0 is at least in part the result.
This week, as we celebrate the third anniversary of this newsletter, we’ll focus on the topic of democracy and autocracy, and how the country is doing. We’ll have a series of focused Substack Lives throughout the week on that topic. More on that tomorrow; tonight, I wanted to get the conversation started. And much of that context involves the Supreme Court.
In one of the sad ironies of this era, as the lower courts do their best to protect democracy from a runaway president, the conservative majority on the Supreme Court seems content to shake its collective head and say, “nah, that’s okay, keep going.” Like always, the most important job in our democracy, the only institution that can hold sway if the courts don’t hold, is us, the voters. We have done it before, and we can do it again. It won’t necessarily be easy, but so many of you are already at it—out there protesting, educating your communities, and holding your elected officials accountable. This is what we do here at Civil Discourse; this is who we are.
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A radical transformation of our way of life is underway. Don’t let anyone gaslight you into thinking this administration is normal.
Remember when Donald Trump got caught with all sorts of classified documents at Mar-a-Lago after saying he didn't have anything, and then he got indicted, but the judge slow-walked the case to death? Or the insurrection he provoked, tweeting “Will be wild,” later pretending it wasn’t his idea, even though he’d been working nonstop to overturn the will of the voters, growing increasingly desperate as court after court told him no, and top military brass and DOJ leadership rejected his efforts to use them to perpetuate his lies about election fraud?
Sometimes, it’s the little details, far too many of them for us to constantly keep on the front burner, that remind us that none of this is how a democracy is supposed to work. Like the grift/gifts Justices Thomas and Alito received from conservative leaders with an interest in cases before the Court. Then there was that time Justice Alito spoke with Trump by phone to ask a favor—hire a former law clerk— just as Trump's request that the Court keep a state judge in New York from sentencing him on his criminal conviction was filed in the Supreme Court. It seemed sketchy then, and although we don’t know, its public exposure may have played a role in ensuring the sentencing happened. We never learned exactly what was said, which is why the call should never have happened. Justices are supposed to avoid even the appearance of impropriety. Presidents, too. But this crew doesn’t care if the public trusts them because it’s not about serving the public.
Or the fact that Justice Thomas participated in the Trump v. U.S. case, even though his wife was *very* pro-January 6. She attended the Stop the Steal rally—while she had a First Amendment right to be there, as a Supreme Court Justice’s wife, if she took the integrity of the institution her husband sat on as seriously as her protestations of patriotism suggest, she might have thought twice. Then there were her 29 texts with Trump’s chief of staff Mark Meadows. Jane Mayer at The New Yorker described the texts, writing that Thomas “militated relentlessly for invalidating the results of the Presidential election, which she described as an ‘obvious fraud.’ It was necessary, she told Meadows, to ‘release the Kraken and save us from the left taking America down.’”
How quickly a president's crazy makes a country forget.
Part of Trump’s shtick is the attempt to rewrite history. Dumb down education, tell people what happened, insist he was blameless and, in fact, the victim. Let the details blur. As his former Attorney General Bill Barr once said, history is written by the winners.
So here we are, assessing autocracy and democracy. And how we resist what is happening to our country.
This newsletter is about more than just law and politics—it’s about building a community that values truth, clarity, and thoughtful discussion in a noisy world. If you’re reading Civil Discourse, you’re a part of that.
If you’re able, I hope you’ll consider becoming a paid subscriber. Your support helps keep this space independent, accessible, and grounded in experience—not outrage. And it allows me to keep showing up here each week with analysis you can trust.
We’re in this together,
Joyce
