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But it’s a very classy authoritarianism


The Atlantic has published a pretty good critique of the Roberts Court’s lawless monarchical turn:

Forget Donald Trump. Forget Joe Biden. Think instead about the Constitution. What does this document, the supreme law of our land, actually say about ​​lawsuits against ex-presidents?

Nothing remotely resembling what Chief Justice John Roberts and five associate ​justices declared​ in yesterday’s disappointing Trump v. United States decision​. The Court’s curious and convoluted majority opinion turns the Constitution’s text and structure inside out and upside down, saying things that are flatly contradicted by the document’s unambiguous letter and obvious spirit.​

Imagine a simple hypothetical designed to highlight the key constitutional clauses that should have been the Court’s starting point: In the year 2050, when Trump and Biden are presumably long gone, David Dealer commits serious drug crimes and then bribes President Jane Jones to pardon him.

Is Jones acting as president, in her official capacity, when she pardons Dealer? Of course. She is pardoning qua president. No one else can issue such a pardon. The Constitution expressly vests this power in the president: “The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States.”

But the Constitution also contains express language that a president who takes a bribe can be impeached for bribery and then booted from office: “The President … shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.” And once our hypothetical President Jones has been thus removed and is now ex-President Jones, the Constitution’s plain text says that she is subject to ordinary criminal prosecution, just like anyone else: “In cases of Impeachment … the Party convicted shall … be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

Obviously, in Jones’s impeachment trial in the Senate, all sorts of evidence is admissible to prove not just that she issued the pardon but also why she did this—to prove that she had an unconstitutional motive, to prove that she pardoned Dealer because she was bribed to do so. Just as obviously, in the ensuing criminal case, all of this evidence surely must be allowed to come in.

But the Trump majority opinion, ​written by Roberts, says otherwise​, ​proclaim​ing that “courts may not inquire into the President’s motives.” ​In a later footnote all about bribery, the Roberts opinion says that criminal-trial courts are not allowed to “admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety.”

But ​​​such an inspection is​​​​ exactly what the Constitution itself plainly calls for​​​. An impeachment court and, later, a criminal court would have to​​ determine whether Jones pardoned Dealer because she thought he was innocent, or because she thought he had already suffered enough, or because he put money in her pocket for the very purpose of procuring the pardon. The smoking gun may well be in Jones’s diary—her “private records”​—​or in a recorded Oval Office conversation with Jones’s “advisers,” as​ was the case in the Watergate scandal​​​. Essentially, the​ Court ​in Trump v. United States ​is declaring the Constitution itself unconstitutional​.​​ Instead of properly starting with the Constitution’s text and structure, the ​​Court has ended up repealing them​​.

This correct — it’s not just that the Court’s invention of near-total presidential immunity has no basis in the text, structure, purpose, or history of the Constitution, it flagrantly contradicts the structure, purpose, and history of the Constitution. The idea that in the Constitution in trying to create an independent, energetic president created one that could abuse its authority with impunity is absolutely absurd, the relatively rare constitutional argument of any interest one can fairly call wrong.

Now to check the byline and…

Akhil Reed Amar

Sounds familiar! I wonder what he had to say when Republicans tipped their hand by nominating a mediocre Ken Starr goon who seamlessly pivoted to a radically expansive view of executive power when nominated to the federal judiciary to the Supreme Court?

The nomination of Judge Brett Kavanaugh to be the next Supreme Court justice is President Trump’s finest hour, his classiest move. Last week the president promised to select “someone with impeccable credentials, great intellect, unbiased judgment, and deep reverence for the laws and Constitution of the United States.” In picking Judge Kavanaugh, he has done just that. . .

Sorry, but Trump v. United States — in all of its senses — also hangs on everyone from the elite liberal world who told us that Trump’s Supreme Court nominees were people of distinction liberals should support. Listen, whether you didn’t know you were being scammed or whether you were in on it…

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