Supreme Outrage!

April 26, 2024

[No audio version for this newsletter due to travel.]

The Supreme Court heard oral argument on Thursday regarding Trump's presidential immunity defense. For clarity, that defense asserts that the president is above the law and beyond the reach of US criminal statutes that otherwise apply to every American. To the shock of everyone—and no one—the reactionary majority expressed sympathy for Trump's defense. The hearing itself was a supreme outrage. While the reactionary majority may not adopt the most extreme version of Trump’s defense, they need not do so to grant Trump a victory. Indeed, they have already granted Trump most of what he asked for: a lengthy delay.

Before I review the debacle that masqueraded as a Supreme Court hearing, let’s skip to the most important part: We have a remedy; we need only be bold enough to claim it. The current court is illegitimate; we must effectively replace it by enlarging the Court to overwhelm the reactionary majority.

Is such a plan reasonable? Constitutional? Wise? Achievable? Yes! Mitch McConnell created an Orwellian rule to deny Democratic presidents the right to appoint Supreme Court justices—and then waived the novel rule as soon as it would apply to an appointment by a Republican. Three justices (at least) lack legitimacy: Gorsuch and Barrett, whose appointments were tainted by the McConnell rule, and Clarence Thomas, who should recuse himself from every case relating to Trump. In short, one-third of the Court that heard Trump's arguments on Thursday had no business presiding over Trump's immunity claim.

Expanding the Court requires only a majority vote in both chambers of Congress and the signature of the president. Those conditions are within our grasp in November 2024. When I first raised this prospect in 2018, it was met with shock and horror by readers, who protested that expanding the Court would undermine its legitimacy. Such objections seem quaint in light of the damage wrought by the Court in six short years.

As Ian Millhiser of Vox wrote today,

One takeaway from today's debacle of a Supreme Court argument is Democrats need to start seriously considering packing the Supreme Court. A Court that would allow Donald Trump to get away with trying to steal a presidential election cannot be trusted.

We have a long list of issues that should drive us to the polls in historic numbers in November. Add to that list that we are burdened with a lawless Supreme Court that cannot be trusted with our democracy or Constitution.

As noted above, the reactionary majority granted Trump a victory before the hearing began by refusing Jack Smith’s request to skip the intermediate step of an appeal to the DC Circuit Court of Appeals. The Court enhanced that victory for Trump by refusing to hear the matter on an expedited schedule. And now it appears that the Court will issue a fractured opinion on the last day possible (June 30) that will order the trial court to engage in pointless pre-trial fact-finding about the difference between “private” and “official” acts.

But most critically, the reactionary majority gave Trump a victory by dignifying ludicrous arguments that should have been rebuked and condemned the moment Trump's counsel gave them voice. In failing to reject those arguments out of hand, the reactionary majority bestowed upon them the veneer of legitimacy and respectability they do not deserve.

For example, Supreme Court Justice Sonia Sotomayor asked Trump's lawyer,

If the president decides that his rival is a corrupt person and he orders the military to assassinate him, is that within his official acts to which he has immunity?

Trump's lawyer responded, “That could well be an official act [and therefore immune from prosecution]”

How did we arrive at this point? How is it possible that counsel for a former president could say with a straight face that a president can order the assassination of a political rival with impunity? How could the justices sit silently and ponder counsel’s answer instead of rising in horror and ordering the attorney out of the courtroom? They are feckless. They have abandoned the Constitution in its hour of need by failing to communicate the horror and repulsion such arguments deserve.

The reactionary majority also gave Trump a victory by refusing to acknowledge the constitutional urgency of the attempted coup and insurrection. Rather than focusing on the facts alleged in the indictment against Trump, the reactionary majority crafted ever more fanciful hypotheticals that had no bearing on the case at hand. As expressed by Professor Laurence Tribe,

Today’s SCOTUS argument was more like a hearing in Congress to design an immunity law for future presidents, with Justice Kavanaugh saying “We’re not taking about the present case” and Justice Gorsuch saying “We’re writing rules for the ages” and Justice Alito joining in.

Only Justice Jackson reminded her colleagues that deciding this case was the Court’s task and that it might not be cool to use it as a vehicle for “answering in advance all these abstract questions”!

By engaging in fantasy rather than focusing on the facts at hand, it is inevitable that the Court will send the case back to the trial court for pre-trial fact finding—an outcome that will ensure the case will be delayed until after the election. The Court will thus deny all Americans the opportunity to cast their vote with the benefit of a jury verdict on Trump's guilt or innocence.

Justice Alito reached the pinnacle of bad faith by arguing that not granting immunity to Trump would increase the likelihood that a future president would try to stay in power. Huh? Every president before Trump relinquished power voluntarily without benefit of presidential immunity. If Trump is told he has absolute immunity and wins a second term, what motivation would he have to leave office—ever?

Alito also summited the peak of hypocrisy. In Dobbs, he wrote that there is no constitutional right to an abortion, reasoning as follows:

Constitutional analysis must begin with “the language of the instrument . . .  The Constitution makes no express reference to a right to obtain an abortion . . . .

But the Constitution make no reference to “presidential immunity.” As counsel for Jack Smith argued,

There is no immunity that is in the Constitution, unless this Court creates it today.

Do not expect blatant hypocrisy to slow Alito’s headlong embrace of presidential immunity that appears nowhere in the Constitution. Alito knows no shame in service of his reactionary agenda.

For additional discussion of the oral argument and potential outcome, see

• Ian Millhiser in Vox, The Supreme Court is likely to place Donald Trump above the law in its immunity case (excellent legal summary), and

• Chris Geidner at Law Dork, SCOTUS approach to Trump's immunity claim likely to delay D.C. case further (substack.com) (deep dive into argument by counsel and questions by justices).

Millhiser predicts an outcome along the following lines:

At least five of the Court’s Republicans seemed eager to, at the very least, permit Trump to delay his federal criminal trial for attempting to steal the 2020 election until after this November’s election. And the one GOP appointee who seemed to hedge the most, Chief Justice John Roberts, also seemed to think that Trump enjoys at least some immunity from criminal prosecution.

As summarized by Josh Marshall of Talking Points Memo, The Court is Corrupt. Say It With Me. Per Marshall,

The Roberts Court is a corrupt institution which operates in concert with and on behalf of the Republican Party . . . That’s the challenge in front of us. . . . But things become more clear-cut once we take the plunge and accept that fact.

The courts are not going to save us. The reverse is true. A significant portion of the federal judiciary has been corrupted and undermined by judges loyal to a reactionary religious and partisan agenda above all else. They view the Constitution and statutes as convenient “talking points” when they advance their agenda and disposable trifles when they do not.

Our remedy is at the ballot box. We must give Joe Biden control of Congress and a mandate to reform the federal judiciary—starting with the Supreme Court. We can achieve that goal if we are disciplined and tenacious. Put aside all disagreements and reservations to ensure Democrats win control of the executive and legislative branches in 2024. Then we can begin the long, slow work of repairing the damage inflicted in a few short years by the reactionary majority empaneled by Trump, McConnell, and The Federalist Society.

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David Pecker’s devastating testimony against Donald Trump

The second day of David Pecker’s testimony was devastating for Trump. Pecker testified that (a) Trump's interest in “killing” the Stormy Daniel’s story related to his campaign rather than Melania’s feelings, and (b) participants in the scheme knew that it was illegal. See Salon, "How's our girl doing?" Pecker says Trump was worried about election "impact" of alleged affairs.

Per Salon,

Before the election, Pecker said, Trump would express concerns that his wife Melania and daughter Ivanka would find out about the alleged affairs with adult film actress Stormy Daniels and other women. "Prior to the election, if a negative story was coming out with respect to Donald Trump and we spoke about it, he was always concerned about Melania, he was concerned about Ivanka, he was concerned about what the family may hear or say about it, not saying whether it was true or not," Pecker said.

Once he embarked on his presidential campaign, however, Trump mentioned his family less frequently. The concern was no longer "what his family would say," Pecker testified, "but the impact it would have upon the election."

Prosecutors read from texts by a National Enquirer editor, Dylan Howard, who was involved in the Trump “catch and kill” scheme. Per Salon,

According to the texts, read aloud by Steinglass, former National Enquirer editor Dylan Howard wrote to an unnamed relative, "[Trump]'s just been named President-elect... at least if he wins I will be pardoned for electoral fraud."

Trump's attorneys began cross-examination of Pecker by establishing that Pecker used the same “catch and kill” tactics for other celebrities—including Arnold Schwarzenegger. So far, the cross-examination has established only that David Pecker committed similar crimes with other politicians—which is not a defense to the crimes alleged against Trump.

Friday should be an interesting day. If Trump cannot inflict heavy damage to Pecker’s credibility, the prosecution has gone a long way to establishing its case against Trump.

Oh, and Trump continues to violate the gag order. See Prosecutors argue that Trump violated the gag order four more times.

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NYTimes bias against Joe Biden, explained

You must read this Politico article in its entirety: The Petty Feud Between the NYT and the White House - Politico. Although the headline describes the feud as “petty,” the article describes reprehensible conduct by the New York Times that explains its biased reporting against Biden.

In sum, the NYTimes publisher, AG Sulzberger, believes that no candidate is qualified to hold the presidency until they sit down for an interview with Sulzberger himself—because, you know, the Times is the master of the universe and the dispenser of all truth.

To get the full flavor, read the article, but here are relevant passages:

On the other side, the newspaper carries its own singular obsession with the president, aggrieved over his refusal to give the paper a sit-down interview that Publisher AG Sulzberger and other top editors believe to be its birthright.

In Sulzberger’s view, according to two people familiar with his private comments on the subject, only an interview with a paper like the Times can verify that the 81-year-old Biden is still fit to hold the presidency.

“All these Biden people think that the problem is Peter Baker or whatever reporter they’re mad at that day,” one Times journalist said. “It’s A.G. [Sulzberger] He’s the one who is pissed [that] Biden hasn’t done any interviews and quietly encourages all the tough reporting on his age.”

So, Sulzberger is willing to throw the election to Trump because his feelings are hurt that Biden won’t bend a knee at the altar of the New York Times!

Even worse is a comment by Peter Baker:

The Times’ chief White House correspondent, Peter Baker, whose stories about Biden’s age have regularly strummed a particularly sensitive nerve, told me that the administration’s frustrations over his and his colleagues’ coverage wasn’t all that unique.

“Every White House I’ve covered complains about our coverage. It comes with the territory,” he said. “But because of Trump, there’s this new assumption that the New York Times and other media are supposed to put their thumb on the scale and take sides and we don’t do that.”

No, Peter Baker, no one is asking you to “Put a thumb on the scale” for Biden. We are asking that you recognize that Trump has said he wants to be a “dictator,” that he has called for the  “termination” of the Constitution, that he promises to prosecute “the Biden Crime family,” that he will imprison those who investigated him over January 6 (including Liz Cheney), that he will use the US military to deport millions of immigrants, that he will jail (or execute) General Milley, and more.

No, Peter Baker. We are not asking you to put your thumb on the scale. With Trump, there is no scale, there is no thumb . . . because Trump wants to destroy the scale and cut off the thumb. The fact that you cannot see the difference is journalistic malpractice that rises to complicity in Trump's attempt to become Dictator for Life—all because Biden will not bow and scrape before the almighty New York Times. Let us pray that when the dust settles, we have not protected the tender feelings of the publisher and journalists at the NYTimes at the cost of losing of democracy.

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Opportunity for reader engagement

Please join me—Robert Hubbell—in a conversation with Dr. Kristin Hook, who is seeking to defeat GOP Rep. Chip Roy in CD 21 in Texas.

Dr. Kristin Hook, candidate for Texas Congressional District 21. See Meet Kristin | Dr Kristin Hook for Congress. Dr. Hook is challenging MAGA extremist Rep. Chip Roy in a district that has been gerrymandered to make it extremely difficult for a Democratic candidate to win. Gerrymandering by Republican legislatures discourages Democratic participation in elections. In Texas, 11% of federal elections and 38% of state elections are uncontested!

Choosing to run against Chip Roy in deep red Texas is an act of courage and hope. And when a Democrat enters a race with long odds, we cannot simply say, “Good luck! Let us know how it turns out!” Those brave candidates are helping other Democrats up and down the ballot and deserve our support. Without it, candidates cannot win; with it, the possibility of victory remains open! I will be contributing to help Dr. Kristin Hook give the voters of Texas CD 21 a choice other than a MAGA extremist.

So, join me in a conversation with Dr. Kristin Hook as she takes on the Herculean task of trying to unseat Chip Roy in the heart of Texas! Sign up here: Meet Dr. Kristin Hook (TX-21) (ngpvan.com). The event will take place on Monday, April 29 at 4pm PST / 6pm CST / 7pm EST.

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Concluding Thoughts

Apologies for the lack of an audio version today; I am traveling, and the hotel internet is painfully slow—as in three minutes to switch between web pages. I may not have internet access on Friday evening. If not, I will ask my daughter to post a placeholder to open the Comment section on Saturday. My wife and I will be at our cabin in Sequoia National Park, helping to open the water system for the summer season.

The Court isn’t going to grant Trump absolute immunity. It is going to grant him further delay so that he can evade accountability while he attempts to regain the presidency.

Still that revelation felt like a gut punch because it proves that the reactionary majority is firmly “in the pocket” of Trump. Whatever we may have believed about the Court’s fundamentalist religious agenda, the reactionary majority appears willing to assist Trump in his plan to install himself as dictator free of constitutional restraints. They are not going to succeed.

Defeating Trump in November is a complete answer to their anti-democratic plans. And controlling one or both chambers of Congress will hobble Trump's plans even if he makes it into office. Controlling a majority of state legislatures and state houses will further frustrate the fascist fever dreams of Trump's enablers.

So, we have Plans A, B, C, and D locked down—with more to come. We are in the thick of the fight, and we are winning, despite the shameful display in the Supreme Court today. Indeed, the reason the reactionary majority was willing to engage in such naked partisanship while sitting in the temple of justice is that they know Trump is cornered and running out of options. Let’s keep up the pressure by ensuring that he loses by 15 million votes in November!

Talk to you tomorrow (if the internet gods are willing)!