As MSNBC's Lawrence O'Donnell laid out this Tuesday, an article written by Supreme Court Justice Brett Kavanaugh 25 years ago looks like bad news for Trump if they do indeed fast-track Jack Smith's to request to have them rule on Trump's claim of absolute immunity from prosecution.
As we already discussed here, Smith did an end-around on Trump's tactic of delay, delay, delay, and now it appears he's going to have another reason to be very worried about how all of this turns out for him.
As The Brennan Center for Justice discussed this week, former presidents are not immune from criminal prosecution:
Donald Trump, as you’ve perhaps heard, has been charged in four separate criminal cases, two of them in federal court. His trial for trying to overthrow the peaceful transfer of power is due to start in federal court on March 4 in Washington, DC. Jury questionnaires already have been sent out to capital residents.
Trump’s lawyers argue that the former president cannot be prosecuted. Last week Judge Tanya Chutkan rejected that claim. “Defendant’s four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens,” she wrote. Special Counsel Jack Smith does not want to wait for the wheels of justice to grind. Yesterday he asked the Supreme Court to weigh in on an emergency basis.
Although it is generally assumed that sitting presidents cannot be prosecuted, even that has never been formally decided: it comes from a footnote in a Justice Department Office of Legal Counsel memo from 1973. But every president understood that they could face charges when they return to private life. Nixon himself seemed to accept the idea when he received Ford’s pardon. Bill Clinton, my old boss, was investigated and cleared after he left office for controversies around his use of the pardon power. I don’t recall too many people saying he should have been immune.
Sen. Mitch McConnell (R-KY) explained his vote not to convict Trump during his second impeachment. “He didn’t get away with anything yet,” McConnell said. “We have a criminal justice system in this country.” Even Justice Brett Kavanaugh — who has expressed skepticism about whether presidents could be investigated — wrote as a private lawyer, “The Constitution itself seems to dictate, in addition, that congressional investigation must take place in lieu of criminal investigation when the President is the subject of investigation, and that criminal prosecution can occur only after the President has left office.”
That article by Kavanaugh was the subject of O'Donnell's opening this Tuesday, with O'Donnell being optimistic we're going to see a unanimous decision against Trump.
I'm not so optimistic, and neither was his first guest Andrew Weissmann, but Weissmann was optimistic we're going to get to at least five votes against Trump, and that's all that matters no matter how the rest of them vote.
The Kavanaugh article is available here, and here is one of the portions read by O'Donnell that has him feeling confident we're going to see Kavanaugh and others rule against Trump:
Is the President of the United States subject to criminal indictment while he serves in office? Congress should establish that the President can be indicted only after he leaves office voluntarily or is impeached by the House of Representatives and convicted and removed by the Senate. Removal of the President is a process inextricably intertwined with its seismic political effects. Any investigation that might conceivably result in the removal of the President cannot be separated from the dramatic and drastic consequences that would ensue. This threat inevitably causes the President to treat the special counsel as a dangerous adversary instead of as a federal prosecutor seeking to root out criminality.
As O'Donnell noted, it appears Kavanaugh destroyed both "the idea that the president cannot be prosecuted after leaving office for crimes committed while in office" and the "absurd notion" that "it would be double jeopardy to prosecute Donald Trump now after he faced an impeachment trial in the United States Senate for essentially the same high crimes."
O'Donnell and his guests were pretty sure Smith's lawyers already had this writing by Kavanaugh ready to go as part of their arguments whenever they get SCOTUS to agree to take the case. I guess we'll find out soon just how compromised Kavanaugh is, and whether he's willing to rule against something he already put in writing, and whether the rest of them are ready to make a bigger mockery of the court than they already have by doing the same.
