Donald J. Trump infamously called for the termination of the Constitution when he was seeking to be declared the “RIGHTFUL WINNER” of the 2020 election in December of that year.
“A Massive Fraud of this type and magnitude allows for the termination of all rules, regulations, and articles, even those found in the Constitution,” he wrote on Truth Social.
If Trump wins the election next month, that wouldn’t even be necessary, because the six Republican-appointed members of the Supreme Court did that for him on July 1 of this year when they decided his petition seeking immunity from prosecution in his favor in Trump v. United States.
Legal experts writing on that blasphemous decision have concentrated on the court’s distinction between a president’s “official” and “unofficial” acts. When the court found that “the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts,” it also found that “the president enjoys no immunity for his unofficial acts.”
Wow, thank you for that, Justices Roberts, Alito, Thomas, Kavanaugh, Gorsuch and Barrett. Since the Constitution itself is utterly silent on the matter of presidential immunity, it was nice of you to create it for us.
I got down into the weeds of Roberts’ decision and some of Barrett’s concurrence, and I have to tell you that only in the Olympic sport of gymnastics have I ever seen such an ability to bend over backward while bowing before power. Within the first two dozen pages, I lost count of the number of citations of previous Supreme Court decisions and decisions by lesser courts, an obvious and extensive attempt by Roberts to be taken seriously.
Roberts' law clerks must have put in for disability pay after the time they spent paging through the impenetrable gibberish of former Supreme Court justices and other federal judges, none of whom, it should be noted, ever located the paragraph or sentence in the Constitution where the word “immunity” is found alongside the words “president” or “presidential.” Not a peep from all the “originalists,” incidentally, whose squawks could be heard for miles when the Supreme Court found, in Roe v. Wade, a right to privacy in the Constitution that they pointed out, ad infinitum, was not in its text.
There is one gigantic omission in the Supreme Court’s reasoning in Trump v. United States. They somehow forgot the implications of their decision found in the fourth clause of Article II, Section 3, which states that the president “shall take care that the laws be faithfully executed.” That is, if a president’s official acts are immune from prosecution and oversight by the Congress, which the court's decision also makes clear, then a president is a law unto himself. How can a man who has been given the power, in effect, to unilaterally make law also make sure that he “takes care” that any such laws are “faithfully executed,” since he is the one executing them?
Do you see the problem of circularity here? The court had an opportunity to notice this problem when Roberts effectively dismissed the charge against Trump for conspiring to overthrow the election when he told Acting Attorney General Jeffrey Rosen, “Just say the election was corrupt and leave the rest to me and Republican congressmen.” Roberts found that the charge must be dismissed because any conversations between Trump and Department of Justice officials fell within the scope of his official duties.
So here we go: We’ve got a law that needs to be faithfully executed, the one against defrauding the United States by conspiring to interfere with its official function, that being the election and certification of a president; and we’ve got the man who should be ensuring that this law be faithfully executed — that is, not violated — engaged in wholesale violation of the law himself.
This is as clear an example of Donald Trump unilaterally making law as can be imagined. The law he sought to make was to appoint himself and Republican members of Congress as the arbiters of which electors were properly elected and which were not. That was clearly intended to allow false electors to be certified, thus negating the genuine electors from certain states who had been certified and submitted by those states’ governors to the National Archives and thence to the Senate.
The Supreme Court decision, in throwing out the federal indictment of Trump for conspiring to overturn the election, also throws out paragraph four of Section 3 of Article II of the Constitution. So, the Supreme Court in Trump v. United States not only created an immunity not found in the Constitution, it unilaterally overturned and rewrote the language of the Constitution itself — a power which, we might add, is also found nowhere in the Constitution.
There are either checks and balances, or there are not. One of the checks established by the Constitution is the power to write laws. This check restrains certain behavior by human beings who are citizens by making that behavior illegal. It is a federal crime, for example, to steal money deposited in banks whose deposits enjoy protection under the Federal Deposit Insurance Corporation. If this law did not exist, it might be a state crime to steal from a bank, but it would not be a federal crime. The way that the executive branch — that is, the part of the government overseen by the president — enforces this law is through the Department of Justice and the FBI, the duties of which, in part, include investigating bank theft. Another federal crime investigated by the FBI and prosecuted by the DOJ is wire fraud, which can include the theft of funds carried out across state lines using “wires,” which now include the internet.
So let’s posit something, shall we? Let us say Donald Trump is elected president, and sometime next year, after his inauguration, he calls in Jeffrey Clark, the former assistant attorney general who tried to get Trump to appoint him as acting attorney general, and whom Trump has now appointed as the actual attorney general. Don’t laugh; it has been suggested. – The two of them engage in what the Supreme Court has said is protected “official” conversation: Trump tells Clark that he wants him to steal some money from a bank, and tells him to use wire transfers to move funds from one account to another one, of course controlled by Trump. Clark does this, naturally.
One: Trump cannot be prosecuted for theft. John Roberts says so.
Two: If an attempt is made to prosecute Jeffrey Clark, say, by a rogue U.S. attorney in the state where the bank is located, Trump can immediately pardon Clark.
So what we have here is the perfect crime. A theft takes place, enriching one man, who happens to be president of the United States. He is immune from prosecution because the Supreme Court created that immunity, despite the fact that he indulged in two crimes: theft and his failure to “take care that the laws are faithfully executed.”
Now, you may say there is still what they call in the law a recourse: Trump could be impeached for “high crimes and misdemeanors” and removed from office. The Congress tried that twice, for crimes far more serious than theft, and was stymied each time by Republicans in the Senate. But no matter whether impeachment and removal takes place or not, the Supreme Court has made Trump immune forever from the crime he committed while he was in office because it was an “official act.”
The Constitution does not say in Article II, Section 3, that the president will take care that the laws be faithfully executed except for the laws that apply to the president. It says “the laws,” presumably meaning they apply to us all.
Chief Justice Roberts is the author of one of the most ignorant, upside-down and despicable lines in any Supreme Court decision since Dred Scott. He wrote in his Shelby County decision, which eviscerated the Voting Rights Act, that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Now he has outdone himself. In Trump v. United States, he wrote, “The President is not above the law.”
He may as well have added, “but Donald Trump is,” because that was the real-world effect of his decision. Donald Trump, who wanted the Constitution “terminated,” has achieved his ends, because if he is elected next month, the Constitution will not apply to him. He will be untethered from reality, oversight and law. He won’t be just a dictator. John Roberts, with the help of Alito, Thomas and the three justices Trump appointed, will effectively have made Donald Trump a god.
