Samuel Alito and GOP thugs show in oral argument that they favor Donald Trump over U.S. institutions; how did that happen, and does it involve crimes?

(Francis Chung/Politico)

One might expect that oral arguments at the U.S. Supreme Court (SCOTUS) would be high-minded affairs, conducted by justices with razor-sharp minds, cutting to the core of complex, contentious issues. But last week's proceeding on Donald Trump's claim of presidential immunity revealed that oral arguments are largely a waste of time, marked by "hypotheticals" that are wildly divorced from reality and muddled logic that could cause a reasonable person to ask: "How did these people get through law school, much less winding up on the nation's highest court?"

The logic of one justice, Samuel Alito, was so nonsensical and shortsighted that Michael Tomasky, editor of The New Republic, dubbed it "beyond belief" -- and he did not mean that in a good way. Here is how Tomasky summarized Alito's mind-bending performance:

The associate justice’s logic on display at the Trump immunity hearing was beyond belief. He’s at the center of one of the darkest days in Supreme Court history.

Worst of all, Alito joined with his comrades on the court's right-wing majority to indicate they intend to grant Trump some sort of immunity -- a notion that has zero support in American law, has no place in our history, and could end democracy and the rule of law as we have come to know them.

Justice Ketanji Brown Jackson had a firm grip on possible repercussions, which seemed to elude her colleagues on the right side of the bench. Said Jackson, cutting through all the hot air hanging over the session:

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? 

That scenario might have flown right over Alito's head, but it did not escape Tomasky's notice. Under the headline "Samuel Alito’s Resentment Goes Full Tilt on a Black Day for the Court." Tomasky writes:

On the day Donald Trump took office in January 2017, pondering what he might do to the country’s democratic norms and institutions, I wrote these words: “Trump will destroy them, if keeping Trump on top requires it. Or try to. He might not succeed. And that is where we rest our hope—on conservative judges who will choose our institutions over Trump. Mark my words: It will come to this.”

That hope seemed not misplaced back in 2020 and 2021, when a number of liberal and conservative judges, some of the latter appointed by Trump himself, handed Trump 60 or so legal defeats as he attempted to unlawfully overturn the election results. But after Thursday at the Supreme Court? That hope is dead. The conservative judges, or at least most of them, on the highest court in the land are very clearly choosing Trump over our institutions. And none more belligerently than Samuel Alito.

His line of questioning to Michael Dreeben, the attorney arguing the special counsel’s case, was from some perverse Lewis Carroll universe:

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?

Does anything in our history suggest this is an actual problem? Of course not -- at least until a criminal of Donald Trump's magnitude landed on the American political scene. Since Samuel Alito seems to favor Donald Trump over American institutions, that thought got planted in his brain and spewed out of his mouth. How nutty was it? Tomasky spells that out in clear terms:

Let’s look to something I’d have thought lawyers and judges took seriously: historical evidence. American democracy has existed for nigh on 250 years, and power has been transferred from a president to his successor a grand total of 40 times (not counting deaths in office). On 11 occasions, a challenger has defeated a sitting incumbent—that is, a situation that creates the potential for some particularly bitter and messy post-election shenanigans.

Now, if Alito’s question really spoke to a malign condition that had hobbled American democracy throughout history and that loomed as a real problem that we had to take seriously, it would stand to reason that our history suggested that these power transfers had a wobbly history—that maybe, say, 12 of 40, and four or five of the 11, had been characterized by violence and unusual threats of retribution against the exiting executive.

But what does the record show? It shows, of course, that there is only one case out of the overall 40, and one case out of the more narrowly defined 11, in all of U.S. history where anything abnormal and non-peaceful happened. That, of course, was 2020.

And there was a lot of bad blood in previous transfers of power. You think John Adams loved the idea of handing power to Thomas Jefferson? John Quincy Adams was popping champagne to turn things over to Andrew Jackson? Grover Cleveland and Benjamin Harrison, who traded wins, weren’t bitter in defeat? These people couldn’t stand each other. But they did what custom required—a custom never questioned by anyone until Trump came along.

So in other words: Alito throws all that democratic history out the window and treats Trump as the new normal, assuming that the American future is ineluctably strewn with a series of lawless Trumps. Alas, with respect to the Republican Party, there’s a chance time will prove him right about that (but only a chance; my cynicism about the depths to which this GOP will sink is almost limitless, but even I think that Trump is most likely sui generis in this respect, and that your average Republican, even the neofascist ones like Tom Cotton, should we be cursed with a Cotton presidency someday, would probably yield power peacefully if he lost).

But think about what it says about both where Trump has delivered this country, and about Alito’s assumptions about democracy. On the former point: Have we now reached a place where challenges to election results are going to be the norm? Where an opposition party can be counted on to find some legal technicality on which to prosecute a former president, rather than leaving him or her in peace as we have throughout our history?

This is another twisting of reality. Trump, his defenders would protest, is the one former president who has not been left in peace. Well, that is true, I confess. But maybe there’s a reason for it! Actually, there are two. Trump has not been left in peace because a) it was always obvious he was not retired, and b) he’s the only ex-president who tried to foment a coup against the United States of America and who declassified sensitive national-security documents with his beautiful brain.

This is where it becomes clear Alito pulled a scam on the American public in order to secure a seat in the rarefied air of SCOTUS. Tomasky writes:

And on the latter point: When George W. Bush named him to the court in 2005, experts told us—of course—that Alito was conservative, yes, but not an extremist (interestingly, Maryanne Trump Barry, Donald’s sister under whom Alito had worked as a prosecutor, was among those recommending Alito’s nomination). As The New Yorker reported in a 2022 profile, Alito was asked in 2014 to name a character trait that hadn’t served him well. His answer? A tendency to hold his tongue. Well, that problem’s been solved, eh? As writer Margaret Talbot noted of the justice, who ignored Chief Justice John Roberts’ importunings to strike a balance in the Dobbs decision, which he wrote: “He’s holding his tongue no longer. Indeed, Alito now seems to be saying whatever he wants in public, often with a snide pugnaciousness that suggests his past decorum was suppressing considerable resentment.”

And this week, he told us, in essence, that in his view democracy depends on allowing presidents to commit federal crimes, because if ex-presidents were to be prosecuted for such things, the United States would become a banana republic. That’s a Supreme Court justice saying that. And while Neil Gorsuch, Brett Kavanaugh, and even Clarence Thomas didn’t go that far Thursday, it was obvious that the court’s conservatives are maneuvering to make sure that the insurrection trial doesn’t see the light of day before the election—in other words, that a sitting president who very clearly wanted Congress to overturn a constitutionally certified election result (about this there is zero dispute) should pay no price for those actions.

When I wrote seven years ago that we rested our hope on conservative judges who will choose our institutions over Trump, trust me, I wasn’t saying I was confident that they would. I was terrified that the day would eventually come. It came yesterday. The conservative jurists chose Trump. It will stand as one of the blackest days in Supreme Court history.

Tomasky, for all of his excellent analysis on immunity, did not dive fully into the swamp that Alito and his right-wing brethren (Thomas, Kavanaugh, Gorsuch, and Roberts) created. (Note: Amy Comey Barrett clearly did not side with Trump's claim of absolute presidential immunity and made a number of thoughtful, well-reasoned comments that could help resolve this case. Because of that, we will not include her with the GOP-appointed scoundrels on the bench. In short, the women on the court -- Comey Barrett and the three liberals -- were clear-headed and in line with legal precedent, while the men were dullards who showed the intellect of Homer Simpson's drinking buddies.) 

It's hard to look at the SCOTUS swamp -- with clear signs that the GOP majority intends to craft some sort of immunity for Trump, even though it has no support in American law, and ask this question: Are Alito & Co. engaged in criminal behavior, and if the answer is yes (I believe it is) what crimes might be going on behind the scenes? I would point to obstruction of justice, conspiracy, bribery, honest-services fraud, and voter/ballot fraud. An investigation might unearth evidence of additional crimes. In my view, such an investigation needs to begin immediately, assuming someone in our government has the spine to take up such a controversial task. If someone doesn't, our democracy might be taking its dying breaths.