The Supreme Court is now perfectly set up to save Donald Trump


Donald Trump first came to America’s attention as a political actor back in 2011, when he became the self-appointed leading voice on the right insisting that President Barack Obama had been illegally elected president because he wasn’t born in the U.S. He made all the rounds of the news shows demanding that Obama produce his birth certificate, even claiming that he sent people to Hawaii, Obama’s birthplace, and teasing to the “Today Show” audience that “they cannot believe what they’re finding.” When Obama produced the birth certificate, Trump claimed “an extremely reliable source” told him it was a forgery. This birther campaign went on for years until Trump was elected president in 2016. And it was all a lie. 

This election is going to test Donald Trump’s belief that “his” three justices would save him.

Isn’t it so typically Trump that after all that he would be the one disqualified from the presidential ballot? At least that’s what the Colorado Supreme Court ruled last night in a case that cites the 14th Amendment barring officers of the government from running if they’ve participated in an insurrection. The court found that he did that and said the Constitution applies to presidents as well. 

The case is going to the U.S. Supreme Court, of course, as everyone expected. But if anyone thinks the high court will defer to a state supreme court out of their often-stated commitment to “states’ rights,” I wouldn’t hold my breath. It’s very likely they’ll agree to take it up and will decide it one way or another. This election is going to test Donald Trump’s belief that “his” three justices would save him. They refused to step up in 2020 but with potential jail terms looming and unprecedented constitutional challenges facing them, he might just luck out. 

The court was already knee-deep in Trump cases anyway. They will let us all know this week if they plan to take up the special counsel’s request that they weigh in early on the question of whether Trump has immunity because he was president when he tried to stage a coup. He filed with both the DC Circuit Court of Appeals as well and they have already said they’ll take it up in a couple of weeks so the Supremes may decide to wait until they issue their opinion. 

They also agreed to take up another January 6 case brought by Joseph Fischer, a man who stormed the Capitol that day and is charged with obstructing an official proceeding. If the Court agrees with Fischer that this law has been wrongfully applied, hundreds of people convicted of that crime will have their convictions overturned or the charge dropped. One of them could be Donald Trump who has been charged with that same crime. 

If the court decides that Trump has immunity because he was acting in his official duties when he incited a riot that day, it’s game over anyway and the January 6 case is pretty much dead. It’s hard to believe they’d do that. Then again most of us didn’t think the court would take up Bush v. Gore and order the counting of votes to stop either. Still, it is important to note that this court has shown some restraint with Trump cases so far, including a case in which he tried to claim “absolute immunity” but they ruled unanimously against him. So they may decide that he shouldn’t have immunity in this case either, which of course he should not. 

The idea that it was his official duty to call up election officials and say, “So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break,” is so ludicrous that it makes your head hurt. 

But they could really muck things up with a bad ruling in the Fischer case which seems as if it could be their reasoning for taking the case this term. Sure, they’ll grant that Trump isn’t immune from accountability but they could easily find that all of those patriotic citizens who ransacked the Capitol and threatened the vice president and speaker of the House may have been unruly but that the charge of obstructing an official proceeding wasn’t meant to cover those particular crimes. You can bet that Trump’s lawyers are going to ask for a stay until they decide it — and that would give the court the excuse they may be looking for to delay Smith’s case until after the election. 

The only thing we know at this point is that the Supreme Court is now going to be involved in three major Trump election cases as we go into the election year.

If the court grants Trump a stay until they decide that issue, Smith could drop the two charges that pertain to that law, leaving two others: conspiracy to deny Americans their rights and conspiracy to defraud the U.S. So maybe the court wouldn’t see the usefulness in helping Trump out with that. On the other hand, the argument set forth by Fischer, that the law was meant to apply to document mishandling, actually does apply to Trump since he was involved in the fake elector scheme. 

The only thing we know at this point is that the Supreme Court is now going to be involved in three major Trump election cases as we go into the election year. Do we really think the Supreme Court with a six-three right-wing majority, three of whom were appointed by Trump to take the heat for Trump being held accountable for his crimes? 


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It really should be a 5-3 majority because Justice Clarence Thomas should recuse himself as former Chief Justice William Rehnquist did in the Nixon case. (He had been in Nixon’s Department of Justice before he joined the court.) Thomas has not only been exposed as a thoroughly corrupt judge who really should resign in disgrace anyway (with even more damning evidence coming out just this week) but the fact that his wife was heavily involved in the very insurrection Trump is accused of fomenting makes it even more obvious. He won’t and they can’t make him. He does what he wants. And in any case, they would still have a majority if they all stick together to protect the former president from the consequences of his actions. Donald Trump and Mitch McConnell saw to that. 

I don’t think anyone can predict what’s going to happen. If the court does rule against Trump and somehow prevents him from running we know all hell will break loose, but what else is new? Unless Trump is exonerated and wins the election that’s going to happen anyway. If the court is smart it will take my colleague Amanda Marcotte’s advice and pull the band-aid off sooner rather than later. Maybe they understand that if Senate Republicans had lived up to their responsibilities and convicted Trump in his second impeachment for inciting the insurrection as they should have the GOP and the country wouldn’t be in this mess today. But I wouldn’t count on it. 

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