A World of Criminality

While the conservative Supreme Court displayed indifference toward the ex-president's conduct, proceedings in New York and Arizona offer signs that accountability is still possible

The criminal defendant, outside the Manhattan courtroom. (Photo by Jeenah Moon via Getty Images)

What is this era of criminality that has beset our body politic? What has gone so wrong that, everywhere we turn, we see the need for criminal proceedings to address the behavior of the man who occupied our White House and his craven operatives who supported his flouting of our nation’s laws and norms and morals? How able are our democratic institutions—and how ready are our public servants—to ensure this behavior will not continue without consequences? We got both troubling and promising answers this week.

In his opening statement yesterday before the Supreme Court, in the case of Donald J. Trump v. United States, involving a claim of “absolute immunity,” prosecutor Michael Dreeben succinctly laid out the government’s position:

This Court has never recognized absolute criminal immunity for any public official. Petitioner, however, claims that a former president has permanent criminal immunity for his official acts, unless he was first impeached and convicted. His novel theory would immunize former presidents from criminal liability for bribery, treason, sedition, murder, and, here, conspiring to use fraud to overturn the results of an election and perpetuate himself in power. 

Such presidential immunity has no foundation in the Constitution. The Framers knew too well the dangers of a king who could do no wrong. They therefore devised a system to check abuses of power, especially the use of official power for private gain. 

Well, the Supreme Court of the United States, once a trusted body there to serve justice and provide guidance to the country, tragically displayed a reluctance to address this criminality in yesterday’s oral arguments (read the transcript). Not every justice, of course, but something shockingly close to a majority, led particularly by Samuel Alito who communicated far greater concern about the dangers of vengeful prosecutors overstepping their bounds than of a criminal ex-president.

And rather than directly addressing the Trump request to provide him absolute immunity and free him from the consequences of election interference, they seemed remarkably uninterested in the events of January 6—almost as if that tragic event did not happen. Or worse, Trump’s assertion that he is being persecuted by a political rival seemed to strongly resonate with them.

Consider this exchange between Justice Alito and Dreeben.

Alito: Let me end with just a question about what is required for the functioning of a stable democratic society, which is something that we all want…Now, if an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy? And we can look around the world and find countries where we have seen this process, where the loser gets thrown in jail?

Dreeben: So I think it's exactly the opposite, Justice Alito. There are lawful mechanisms to contest the results in an election. And outside the record but I think of public knowledge, Petitioner and his allies filed dozens of electoral challenges and, in my understanding, has lost all but one [Note: 60-1 cases lost] that was not outcome determinative in any respect. There were judges that said, in order to sustain substantial claims of fraud that would overturn an election result that's certified by a state, you need evidence, you need proof. And none of those things were manifested. So there is an appropriate way to challenge things through the courts with evidence. If you lose, you accept the results. That has been the nation's experience. I think the Court is well familiar with that.

In an earlier exchange with Chief Justice John Roberts, Dreeben also addressed the notion that the greater concern is prosecution by a current president against an ex-president. “I do think that there are layered safeguards that the Court can take into account,” Dreeben said, that:

…will ameliorate concerns about unduly chilling presidential conduct. That concerns us. We are not endorsing a regime that we think would expose former presidents to criminal prosecution in bad faith, for political animus, without adequate evidence. A politically driven prosecution would violate the Constitution…It's not something within the arsenal of prosecutors to do. Prosecutors take an oath. The attorney general takes an oath.

Then there was Justice Neil Gorsuch, who was also deeply worried about the dangers facing a president from vengeful political rivals. As he put it, “I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives.”

That is his concern, not the abuse of power by a former president who sought every means possible to overthrow a legitimate election and avoid the peaceful transfer of power. Worse, Gorsuch offered a self-righteous depiction of what he and his colleagues were there for: “We’re writing a rule for the ages.”

And then there was D. John Sauer, Trump’s defense attorney, who offered this one-sentence summary of their thinking at the very beginning: “Without presidential immunity from criminal prosecution, there can be no presidency as we know it.”

Notice the “as we know it” here. As if the current criminal prosecutions are disconnected from actual criminal behavior. As if the fact that Trump is facing criminal prosecution indicates something wrong with the prosectors rather than the prosecuted—a man who sought to hold onto power despite losing his election. As if whatever or however much criminality Trump may have pursued during his presidency is beyond the reach of prosecution and is, in fact, his right as president.

This is just the kind of argument Trump has been making—and that appallingly connected with this court’s “conservative” justices.

Back in the known world was Justice Ketanji Brown Jackson, offering a counterpoint to the grave concern over prosecutors with “bad motives” and specifically to the argument of Trump’s counsel. “You seem to be worried about the president being chilled,” she said:

I think that we would have a really significant opposite problem if the president wasn't chilled. If someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority could go into office knowing that there would be no potential penalty for committing crimes, I'm trying to understand what the disincentive is from turning the Oval Office into, you know, the seat of criminal activity in this country…If the potential for criminal liability is taken off the table, wouldn't there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they're in office? 

Future presidents—and a very recent past president.

Note the observations of California Rep. Zoe Lofgren, one of the members of the select committee investigating the January 6 insurrection., commenting on “the conduct of the court” yesterday. “They didn’t need to take the case at all because the appellate court had a very convincing and sound decision,” she told MSNBC host Nicole Wallace:

When Mr. [Jack] Smith asked them to decide earlier once they gave an indication, they refused to do it. They dragged it out and it looks like—and I hope I’m wrong—rathe than decide the case before them, they are going off on tangents that will lead to further delay…It can’t be in our system that a president who tried to overturn the government to stay in power will not be tried before the next election. This is really outrageous.

Outrageous—yet highly probable.

But let’s also note what else happened in the last two days. In two states, New York and Arizona, we can see the wheels of justice in motion with the real possibility that Trump and his enablers will be held accountable.

Last year Manhattan District Attorney Alvin Bragg brought 34 felony charges involving falsification of business records to hide payments to a porn star—despite concerns by many pundits that these would be insignificant and largely provide the criminal defendant a platform to show off. Yet this week’s opening has quickly made clear that this is a serious case of election interference.

We have learned that Trump worked closely with National Enquirer boss David Pecker to make up stories to trash his opponents—giving real meaning to his constant refrain of “fake news.” We have heard from Pecker that, far from Trump being a disinterested observer, he is a micromanager who knew everything that was going on—and that includes his role in hush money payments to Stormy Daniels and Karen McDougal to keep that information from the voting public.

Forget the nonsense that Trump was trying to protect his family. “It wasn’t ‘What would Melania say, or Ivanka?’” Pecker testified yesterday. “It was basically what the impact would be to the campaign and the election.”

There is much more, of course, which we will see play out in the weeks ahead. But as reported previously, there are increasing signs that—whatever the ultimate outcome of this jury trial—the myth of the strongman is being deflated day by day as the weak and broken defendant fails to rise above this criminal proceeding.

Lastly, yesterday’s breaking news that an Arizona grand jury charged 11 Arizona Republicans and seven former aides to Trump—including Rudy Giuliani, Mark Meadows and Jenna Ellis—with participating in a fake elector scheme to falsely certify that Trump won the state in 2020. In a bold banner headline in the print edition, the Arizona Republic reported, “Fake Electors in Arizona Indicted.”

The indictment was announced by Arizona Attorney General Kris Mayes, which describes fake electors engaged in a conspiracy “preventing the lawful transfer of the presidency of the United States, keeping President Donald J. Trump in office against the will of Arizona voters, and depriving Arizona voters of their right to vote and have their votes counted.” In addition to the 11 local Republicans and seven former Trump aides was Trump himself, characterized as “unindicted coconspirator 1.”

I leave you with this: If you ever think your vote doesn’t matter, keep in mind that Kris Mayes, a Democrat, won her election in 2022 by 280 votes. That was 1,254,809 to 1,254,529 for pro-Trump election denier Abe Hamadeh. There would be no indictment and no investigation if Mayes lost. "Whatever their reasoning was, the plot to violate the law must be answered for, and I was elected to uphold the law of this state,” Mayes said yesterday.

In a world of criminality, justice must be served.

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