Robert Reich’s The Supreme Court’s Farce And Ruse – OpEd


The oral argument before the Supreme Court about Trump’s claim of immunity from prosecution for inciting an insurrection was a farce and a ruse. 

A farce because the Republican appointees to the court suggested that presidents have some level of immunity — certainly for official actions well within the duties of the office. But this case clearly isn’t about official action within the duties of the office. This case is whether presidents have immunity for instigating an insurrection seeking to overturn the results of an election. 

No matter. The Republican appointees to the court then explored how to decide which actions are official and which are purely private. 

It was a ruse because the Republican appointees to the court know full well that if they return the immunity case to the lower courts to decide whether instigating an insurrection is within the official duties of a president, and whether a test should consider Trump’s motives or purely objective facts, they’ll delay the underlying case so long that it won’t be tried before the election. This would give Trump the opportunity, if elected, to appoint as attorney general a loyalist who will drop the charges against him.

Justice Samuel Alito — the most dangerous and deceitful Republican appointee on the court (he wrote the Dobbs decision, brazenly reversing Roe v. Wade) — said that “a stable, democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office peacefully.” 

True. But then Alito had the chutzpah to claim that if a president thought he might be prosecuted for whatever he did to cling to office — including inciting a riot at the U.S. Capitol — he would likely keep clinging by any means possible. Ergo, according to Alito’s upside-down logic, the possibility of post-presidential prosecution could “lead us into a cycle that destabilizes the functioning of our country as a democracy.”

Hello? Surely Trump’s insurrection destabilized American democracy more than special prosector Jack Smith’s attempt to hold Trump accountable for it. 

The case before the justices is whether inciting an insurrection is a prosecutable offense. Of course it is. By blowing it up into something else, the Republican justices are blowing up Trump’s trial — which is exactly their intention. 

Meanwhile, House Speaker Mike Johnson visited Columbia University yesterday and demanded that President Biden call in the National Guard to college campuses to quell mass protests over the Israel-Hamas war. 

Johnson called the protests “dangerous,” and warned that “if this is not contained quickly and if these threats and intimidation are not stopped, there is an appropriate time for the National Guard.”

Rubbish. Failure to hold accountable a president who instigated a violent insurrection is dangerous to the future stability of American democracy. Peaceful protests on college campuses about America’s complicity in the deaths of tens of thousands of Palestinian civilians in Gaza reflect the strength of American democracy.

This article was published at Robert Reich’s Substack

Robert Reich

Robert B. Reich is Chancellor's Professor of Public Policy at the University of California at Berkeley and Senior Fellow at the Blum Center for Developing Economies, and writes at Reich served as Secretary of Labor in the Clinton administration, for which Time Magazine named him one of the ten most effective cabinet secretaries of the twentieth century. He has written fifteen books, including the best sellers "Aftershock", "The Work of Nations," and"Beyond Outrage," and, his most recent, "The Common Good," which is available in bookstores now. He is also a founding editor of the American Prospect magazine, chairman of Common Cause, a member of the American Academy of Arts and Sciences, and co-creator of the award-winning documentary, "Inequality For All." He's co-creator of the Netflix original documentary "Saving Capitalism," which is streaming now.

2 thoughts on “Robert Reich’s The Supreme Court’s Farce And Ruse – OpEd

  • April 28, 2024 at 4:06 am

    SCOTUS should not have taken this up and should have left stand the lower court’s ruling. Instead after considerable delay they decided to take it. The next best thing to do would have been to issue a narrow ruling and not to overreach and not to make some sort of broad ruling on the larger question of presidential immunity. They again chose wrong. Any kind of overarching decision about presidential immunity can do nothing but harm. If a president is given any level of immunity, however limited, it opens the door for future presidents to test and abuse what the limits of that immunity are. If the Court decides all actions of a president are subject to future prosecution, will the president then be subject to prosecution for executive orders and all manner of decisions made on a daily basis? For example, could Biden be prosecuted for student loan forgiveness? We have had 46 presidents who have functioned well with the constitution as written without the need to put a fine point on this issue. An individual facing 90 indictments has made an appeal to the Supreme Court in a desperate attempt to delay his prosecution and this Court has obliged. Reasonable people can wonder about these decisions and can conclude any of the following: 1. This court is incompetent. 2. This court has decided to deliberately delay the ruling to prevent the conclusion of the court case until after the election. 3. This court is being swayed by their political party affiliations. They’re putting party before country. 4. This court is populated with small-minded people with inflated hubris. Any of the above conclusions reveal an unfit court. As citizens of this free country we have a right to do something about this. The constitution allows congress to impeach justices on the court. We need to vote-in a congress that will pursue just that. I hope we will see people running for office advocating these actions.

  • April 28, 2024 at 1:47 pm

    With the fact that Trump took the oath to protect and defend the constitution and accepted the responsibility of Commander and Chief he should charged with dereliction of duty in a military court. He is a clear and present danger. A military tribunal could review the evidence quickly without the legal maneuvering of the civil courts.


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