JUSTICE ALITO'S "HYPOTHETICAL"

From Jamelle Bouie’s Saturday morning newsletter:

“I mentioned it in passing in my Friday column, but I was struck — disturbed, really — by one specific point made by Justice Samuel Alito during Thursday’s oral arguments in Trump v. United States.

“Alito began innocuously enough: “I’m sure you would agree with me 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 if that candidate is the incumbent.”

“Of course,” answered Michael Dreeben, the lawyer arguing the case for the Department of Justice.

“Now,” Alito continued, “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?”

“The implication of Alito’s question is that presidential immunity for all official acts may be a necessary concession to the possibility of a politically motivated investigation and prosecution: Presidents need to be above the law to raise the odds that they follow the law and leave office without incident.

“If this sounds backward, that’s because it is.

“There have been, in the nearly 236 years since Americans ratified the Constitution, 45 presidents. Of those, 10 sought but did not win re-election. In every case but one, the defeated incumbents left office without incident. There was no fear that they would try to overturn the results or subvert the process, nor was there any fear that their successors would turn the power of the state against them. Thomas Jefferson did not try to jail John Adams after the close-fought 1800 election; he assured the American people that “we are all republicans, we are all federalists.” Jimmy Carter did not sic the F.B.I. on Gerald Ford in the wake of his narrow victory; he thanked him for “all he has done to heal our land.”

“By Alito’s lights, this should not have been possible. Why would a president leave if he could be prosecuted as a private citizen? The answer is that the other nine people who lost had a commitment to American democracy that transcended their narrow, personal or partisan interests.

“Alito’s hypothetical rests on the idea that this is unusual — that we should expect a defeated president to want to hold on in spite of the Constitution. But that’s a complete inversion of the reality of American history.

“The truth is that exactly one person in 236 years has tried to subvert the process of presidential succession. He did not do so because he feared prosecution; he did so because he did not believe the people of the United States had the right to tell him to leave. He was indicted not because President Biden disagreed with his policies; he was indicted because he led an effort to overturn the results of the election he lost, an effort that culminated in an attack on the United States Capitol.

“Alito would have you believe that Trump’s actions were a normal response to political defeat that the government has essentially criminalized in its zeal to punish an opponent. I have no doubt that this is the reality of Fox News and the fever swamps of conservative media. It might even be the consensus view of Republican lawmakers and activists. But here on Earth, it’s hogwash. Bunkum. Claptrap. Malarkey, even.

“The way we shield our liberties from the threat of a tyrant is to make men obey the law, not place them above it. We chain the power of those who hold office; we don’t unleash it for them to use at their discretion. We don’t extend every privilege and immunity we can imagine; we deny them and demand responsibility.

“I have a feeling that Alito and his fellow travelers on the court would understand this simple point if the president in question were an opponent and not an ally. As it stands, at least a few justices on the Supreme Court would rather shatter a bedrock principle of American democracy than let Trump face the consequences of his own actions.”

Good news: POLITICO did a quick national poll yesterday, to find that 70% of Americans disagree with the idea of a President being immune to prosecution.

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