Apparently interpreting the Supreme Court’s decision on the 14th Amendment as a personal vote of confidence, Donald Trump pushed his luck, urging the justices to rule swiftly that he has absolute immunity as well.
That is not likely. Most observers thought the court would reject Colorado’s action because permitting it would have invited chaos in the middle of an ongoing election and because the court husbands its legitimacy. Had it upheld Colorado’s disqualification, the court would instantly have become a hate object for 70% of Republicans, who would have perceived its ruling as baldly political, denying to voters their free choice of candidate.
The presidential immunity claim is another matter. A ruling that completely adopted Trump’s position in that case would essentially gut the Constitution, permitting a president to accept bribes, use taxpayer money to build a series of palaces for himself all over the world, or arrest and torture his critics. As the D.C. Circuit Court put it: “At bottom, former President Trump’s stance would collapse our system of separated powers by placing the president beyond the reach of all three branches.”
Here’s the rub: If Trump is reelected in November, he will essentially have total immunity, regardless of what the court says.
A reelected Trump would have the voters’ imprimatur for lawlessness. If he wins in November, the message from voters will be: Yes, we know he mishandled the most sensitive classified documents and obstructed justice rather than return them. and we know he caused the deaths of millions of COVID patients by lying about the threat of the virus and discouraging precautions. and we know he invited his followers to threaten and harass innocent election workers, secretaries of state and governors. and we know that he called for shoplifters to be shot on sight and said the Constitution should be terminated. We know he said he’d be a dictator for a day. Above all, we know that he attempted to subvert the peaceful transfer of power and remain in office despite the will of the people. and we chose him anyway. Reelection would grant absolution for all of it.
The supposed guardrails of democracy are already creaking and groaning at the prospect of another Trump term. Just look at the state of the GOP. As a “might be” president, he is already able to dictate the composition of the Republican National Committee, rig a primary in Nevada, kill a border bill that would have given Republicans 90% of what they’ve been demanding for years and undermine Republican support for Ukraine.
Now imagine that Trump is president again and instructs the Justice Department to bring treason charges against Jack Smith. Who will stop him? The carefully vetted MAGA lawyers he has hired precisely for their loyalty?
What if he instructs the IRS to audit and fine Liz Cheney, Adam Schiff, George Conway and hundreds of other prominent critics? This violates IRS rules. But will IRS employees, again hired for loyalty to Trump, demur? After all, he did run on the promise, “I am your retribution,” and his voters agreed.
What if he directs the SEC to investigate banks that refuse to loan the Trump Organization money? Would any whistleblower risk his job or worse?
What if, in response to street demonstrations, Trump invokes the Insurrection Act and federalizes the national guard, allowing the military to shut down protests and arrest (or worse) demonstrators without cause?
In Trump’s first term, he was partially thwarted by strong institutions, yes — but above all by a deep commitment to the rule of law among the citizens of this country. A mid-level NSC staffer found the courage to defy the president’s illegal and immoral acts because of his deep faith in the people’s values. As Alexander Vindman said to his father, who, having grown up in the totalitarian USSR, worried about what might happen to his son for opposing the president, “Do not worry, I will be fine for telling the truth.”
Except he wasn’t. Not quite. He and (for spite) his twin brother were fired from the NSC. His military promotion was put on hold. He was harassed. It would be far, far worse in a second Trump term. Would there even be Alexander Vindmans in a second Trump presidency?
Doubtful. The mob justice that Trump has practiced and been rewarded for would intimidate nearly all. and they would not be enough to preserve constitutional democracy.
As Judge Learned Hand said in his 1944 Spirit of Liberty speech:
“I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.”
On April 22, the Supreme Court will hear arguments on presidential immunity and will perhaps issue a ruling full of pious talk about the rule of law. But the words will be empty if Trump is elected.