We should be more alarmed than grateful that the Supreme Court let the sentencing of Donald Trump go forward. The fact that there were four justices prepared to block the proceeding bodes ill for the high court’s willingness to act as a check on Trump once he returns to office.
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This was effectively a non-sentence: The judge imposed no jail time, no fine, no conditions of probation. In deference to his status as president-elect, Trump wasn’t even required to turn up in person, as would anyone else convicted of 34 felony counts.
“All hell breaks loose today!” Trump railed in a fundraising email, but no hell did. Trump now gets to appeal his conviction for falsifying business records to cover up his hush money payment to adult-film actress Stormy Daniels. That’s all.
Trump’s still (barely) private attorneys — his incoming solicitor general, the government’s top lawyer before the Supreme Court, joined by his nominee to be deputy attorney general, the department’s No. 2 post — presented a series of hyperbolic arguments about the supposed harm that would ensue from sentencing.
“President Trump is already suffering grave irreparable injury from the disruption and distraction that the trial court abruptly inflicted by suddenly scheduling a sentencing hearing for the President-Elect of the United States, on five days’ notice, at the apex of the Presidential transition,” they warned the justices. This argument took some nerve, since the delay in sentencing until after the election came at Trump’s behest. As to disruption and distraction imposed on the president-elect and threatening — I’m not making this up — national security, spare us. Trump took time out for a round of golf the other day.
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The most outlandish of Trump’s claims was that the doctrine that presidents are immune from criminal prosecution during their time in office somehow also creates an additional category of pre-presidential immunity for presidents-elect.
“Any criminal sentencing, and even the distraction of ongoing criminal proceedings, disrupts and will continue to disrupt the enormously burdensome and sensitive tasks of the Presidential transition,” the lawyers argued.
As the New York prosecutors responded: This is bunk. “No judicial decision or guidance from the Department of Justice has ever recognized that the unique temporary immunity of the sitting President extends to the President-elect,” they wrote. “Such an extension would conflict with this Court’s holdings that Article II vests the entirety of the executive power in the incumbent President alone.”
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Trump raised other, slightly more credible arguments: that the jury was improperly allowed to hear evidence that involved Trump’s official acts, in violation of the Supreme Court’s ruling on presidential immunity; and that the doctrine governing immunity for official acts requires that the entire case be paused while that issue is litigated.
But as the five-justice majority noted in its brief order rejecting Trump’s claims: “First, the alleged evidentiary violations at President-Elect Trump’s state-court trial can be addressed in the ordinary course on appeal. Second, the burden that sentencing will impose on the President-Elect’s responsibilities is relatively insubstantial in light of the trial court’s stated intent to impose a sentence of ‘unconditional discharge’ after a brief virtual hearing.” A chilling question: What would have happened if the judge hadn’t announced his intention to impose the wrist-slappiest possible sentence?
The next part of the court’s order was even more chilling: “Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would grant the application.” In other words, two of Trump’s most loyal — most reflexive — defenders, Justices Clarence Thomas and Samuel A. Alito Jr., and two of his three nominees, Justices Neil M. Gorsuch and Brett M. Kavanaugh, would have taken the extraordinary step of ordering the New York judge, Juan Merchan, not to proceed.
Two of the conservative justices disagreed. Chief Justice John G. Roberts Jr. and Justice Amy Coney Barrett, Trump’s third appointee to the high court, joined with the three liberal justices to allow the sentencing to go forward.
This is what passes for good news, I suppose, with the current court — which is to say, not terribly cheery.
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Barrett, who is being decried by Trump’s MAGA allies as a traitor and worse, has been a welcome surprise for her independence and intellectual honesty. In several significant cases last year — the immunity ruling, the scope of the constitutional disqualification provision and the reach of an obstruction statute used to charge some Jan. 6 defendants — she broke from Roberts and the other conservative justices.
Roberts’s role is more complex. He is the author of the immunity and obstruction opinions and is presumed to have written the disqualification ruling, as well. He seems to have little love for Trump — he rebutted Trump in his first term when Trump complained about “Obama judges,” and Roberts ruled against Trump in important cases, including his efforts to eliminate protections for immigrant “dreamers,” his attempt to add a citizenship question to the census, and his resistance to efforts to obtain his financial records.
But it remains to be seen how willing Roberts will be during Trump’s second term to break with the other conservative justices. The arithmetic of the conservative supermajority is relentless.
Thomas and Alito appear automatic in their support for Trump; for liberals, they’re a lost cause. The real disappointments in the court’s actions on Thursday are Gorsuch and Kavanaugh. Especially in the context of a request for emergency relief, which sets a high bar for intervention, and given the weakness of Trump’s arguments, it is astonishing they would have stepped in to halt the sentencing.
That does not provide much hope about what will happen when Trump’s lawyers, pivoting from representing him personally to arguing on behalf of the United States, make their next appearance before the high court.
Make sense of the latest news and debates with our daily newsletter
This was effectively a non-sentence: The judge imposed no jail time, no fine, no conditions of probation. In deference to his status as president-elect, Trump wasn’t even required to turn up in person, as would anyone else convicted of 34 felony counts.
“All hell breaks loose today!” Trump railed in a fundraising email, but no hell did. Trump now gets to appeal his conviction for falsifying business records to cover up his hush money payment to adult-film actress Stormy Daniels. That’s all.
Trump’s still (barely) private attorneys — his incoming solicitor general, the government’s top lawyer before the Supreme Court, joined by his nominee to be deputy attorney general, the department’s No. 2 post — presented a series of hyperbolic arguments about the supposed harm that would ensue from sentencing.
“President Trump is already suffering grave irreparable injury from the disruption and distraction that the trial court abruptly inflicted by suddenly scheduling a sentencing hearing for the President-Elect of the United States, on five days’ notice, at the apex of the Presidential transition,” they warned the justices. This argument took some nerve, since the delay in sentencing until after the election came at Trump’s behest. As to disruption and distraction imposed on the president-elect and threatening — I’m not making this up — national security, spare us. Trump took time out for a round of golf the other day.
https://www.washingtonpost.com/opin...mc_magnet-opsupremecourt_inline_collection_19
The most outlandish of Trump’s claims was that the doctrine that presidents are immune from criminal prosecution during their time in office somehow also creates an additional category of pre-presidential immunity for presidents-elect.
“Any criminal sentencing, and even the distraction of ongoing criminal proceedings, disrupts and will continue to disrupt the enormously burdensome and sensitive tasks of the Presidential transition,” the lawyers argued.
As the New York prosecutors responded: This is bunk. “No judicial decision or guidance from the Department of Justice has ever recognized that the unique temporary immunity of the sitting President extends to the President-elect,” they wrote. “Such an extension would conflict with this Court’s holdings that Article II vests the entirety of the executive power in the incumbent President alone.”
Follow Ruth Marcus
Trump raised other, slightly more credible arguments: that the jury was improperly allowed to hear evidence that involved Trump’s official acts, in violation of the Supreme Court’s ruling on presidential immunity; and that the doctrine governing immunity for official acts requires that the entire case be paused while that issue is litigated.
But as the five-justice majority noted in its brief order rejecting Trump’s claims: “First, the alleged evidentiary violations at President-Elect Trump’s state-court trial can be addressed in the ordinary course on appeal. Second, the burden that sentencing will impose on the President-Elect’s responsibilities is relatively insubstantial in light of the trial court’s stated intent to impose a sentence of ‘unconditional discharge’ after a brief virtual hearing.” A chilling question: What would have happened if the judge hadn’t announced his intention to impose the wrist-slappiest possible sentence?
The next part of the court’s order was even more chilling: “Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would grant the application.” In other words, two of Trump’s most loyal — most reflexive — defenders, Justices Clarence Thomas and Samuel A. Alito Jr., and two of his three nominees, Justices Neil M. Gorsuch and Brett M. Kavanaugh, would have taken the extraordinary step of ordering the New York judge, Juan Merchan, not to proceed.
Two of the conservative justices disagreed. Chief Justice John G. Roberts Jr. and Justice Amy Coney Barrett, Trump’s third appointee to the high court, joined with the three liberal justices to allow the sentencing to go forward.
This is what passes for good news, I suppose, with the current court — which is to say, not terribly cheery.
https://www.washingtonpost.com/opin...d=mc_magnet-optrumpadmin_inline_collection_18
Barrett, who is being decried by Trump’s MAGA allies as a traitor and worse, has been a welcome surprise for her independence and intellectual honesty. In several significant cases last year — the immunity ruling, the scope of the constitutional disqualification provision and the reach of an obstruction statute used to charge some Jan. 6 defendants — she broke from Roberts and the other conservative justices.
Roberts’s role is more complex. He is the author of the immunity and obstruction opinions and is presumed to have written the disqualification ruling, as well. He seems to have little love for Trump — he rebutted Trump in his first term when Trump complained about “Obama judges,” and Roberts ruled against Trump in important cases, including his efforts to eliminate protections for immigrant “dreamers,” his attempt to add a citizenship question to the census, and his resistance to efforts to obtain his financial records.
But it remains to be seen how willing Roberts will be during Trump’s second term to break with the other conservative justices. The arithmetic of the conservative supermajority is relentless.
Thomas and Alito appear automatic in their support for Trump; for liberals, they’re a lost cause. The real disappointments in the court’s actions on Thursday are Gorsuch and Kavanaugh. Especially in the context of a request for emergency relief, which sets a high bar for intervention, and given the weakness of Trump’s arguments, it is astonishing they would have stepped in to halt the sentencing.
That does not provide much hope about what will happen when Trump’s lawyers, pivoting from representing him personally to arguing on behalf of the United States, make their next appearance before the high court.
