The U.S. Supreme Court's decision to grant Donald Trump immunity from prosecution for 'official acts' demonstrates how the former President has the judicial system in his pocket.
George Grundy continues his series on the collapse of American democracy in the lead-up to the 2024 Election. Read the first part here, part three here, part four here, part five here, part six here, part seven here and part eight here.
DONALD TRUMP has spent a lifetime abusing America’s court system, getting sued, counter-suing and using the threat of legal action and his immense wealth to force submission.
Trump is constantly engaged in a battle to keep consequence at bay, sometimes without success. Trump’s university was found to be a fraud, he was revealed to have stolen from a kids' cancer charity, his company was found liable for criminal tax fraud and his CFO was gaoled, twice.
Trump’s White House was, similarly, a hotbed of nefarious criminals, grifters and bad actors, and many of those closest to Trump have also found themselves charged with crimes or gaoled.
It’s almost impossible to keep up when it comes to Trump Administration criminality, but towering above all else are the events of 6 January 2021. Trump was found by the bipartisan 6 January Committee to have been primarily responsible for the worst attack on the U.S. Government since the Civil War. Over 1,200 of the participants that day have been charged or convicted, yet the U.S. justice system has proved so ponderous and unfit for purpose that the author of the violent coup attempt is somehow free to run for president again.
What’s most remarkable about Donald Trump’s litany of criminal litigation is that the cases themselves are mostly regarded by legal experts as “open and shut” certainties. Almost no one credible actually disputes that Trump committed the crimes he’s charged with and should the legal system ever catch up with him, the potential consequences for the former President are intimidating.
Yet despite the courts seeming to have Trump dead to rights, he has somehow found a way to delay his remaining trials through legal chicanery and interminable appeals, late enough into 2024 that the Election will supersede the application of timely justice.
And should Trump somehow win office again, all bets are off. Trump can and will appoint an Attorney General (Stephen Miller’s name has been mentioned) who will think nothing of telling the Justice Department to dismiss all federal charges, leaving just a few paltry state crimes to deal with — the kind of thing that a president with no regard for the law can simply swat away.
Time is not on the judicial system’s side. The 2024 Election is on 5 November, but it is the long-standing Department of Justice policy not to launch or continue criminal proceedings in the 60 days prior to an election. So from Trump’s perspective, it’s more likely that 5 September is the date that represents safe harbour.
That’s two months away. Once September arrives, Trump can argue that the DOJ’s own rules mean that he can’t face prosecution during an election campaign. It’s not inconceivable that he would simply refuse to comply if the courts tried to continue proceedings.
Early voting begins in a number of states immediately after Labor Day (also early September) and voting has never taken place while a major party candidate is in court facing criminal charges. Continuing the prosecution of legal cases after this time risks some voters casting their ballot before crucial new information is revealed.
As such, early September probably represents the sanctuary where Trump’s legal quagmire might be halted (if temporarily) and delay at any cost is now very clearly his legal team’s goal. The media mostly fails to frame this story correctly, suggesting that Trump’s daily wins and losses amount to something of value. In fact, all that matters to Trump is delaying accountability and bringing him tantalisingly closer to a time at which the Election might overwhelm the legal system.
It’s a political strategy masquerading as legal tactics.
Trump’s criminal trials not only represent a threat to his political fate, they are also inexorably entwined with his freedom from a likely prison sentence. So as the Election nears, he is likely to view these matters as if they are a literal fight for survival and act accordingly.
Total immunity
Trump’s efforts to attack, delay and dodge the legal system are just part of his years-long effort to delegitimise the judiciary, and nowhere has the degradation of the instruments of state been more starkly illustrated than the collapse of confidence in the Supreme Court.
Chief Justice John Roberts has overseen a calamitous period in which public support for the court has collapsed from 56 per cent to less than half that number today and it’s not hard to divine the reasons. Ideological control over the court has been a Republican project for decades and Trump’s good fortune in being able to appoint three justices in his first term – fully a third of the court – is a significant factor in the Party’s base sticking with him, despite Trump’s obvious personal issues.
Not only is the court now an extremist institution, consistently delivering rulings that defy overwhelming public support, but justices such as Clarence Thomas have been exposed to be corrupt on a level never before experienced in American history.
Billionaire Harlan Crow’s munificent patronage of Justice Thomas has been revealed in a series of scoops by ProPublica. It includes millions in private jets and holidays and the payment of Thomas’ (adoptive) son’s private school fees. Crow even bought Thomas’ mother’s house, where she still lives, apparently rent-free.
Thomas’ wife Ginni was an active participant in the plot to overturn the 2020 Election — now her husband has helped delay the trial of the man at the centre of the insurrection. Fellow Judge Samuel Alito has received similar gifts from rich businessmen with matters before the court and also seems to have expressed sympathy with the “Stop the Steal” movement (that tried to keep Trump in office in 2021).
Confidence in the Supreme Court, which represents the lead institution of America’s judiciary, is of extraordinary importance to the functioning of American society. The court commands no armies, no police force and has no budget, save that of its own function. When Americans no longer trust the courts and feel that judges need to be viewed through the prism of which president appointed them, the whole country is weakened.
The criminal case against Trump in Washington – that of a wide-ranging campaign to retain power after the 2020 Election (culminating in the 6 January insurrection) – represents the most serious charge against Donald Trump. The evidence in the case looks overwhelming, yet Trump has once again been successful in delaying the trial by appealing to the Supreme Court, claiming that a former president should enjoy total immunity from prosecution (for actions taken whilst in office).
It’s worth taking a step back here. Trump’s claim of total presidential immunity is utterly unprecedented. “Ludicrous” might be a better word, especially as those advocating for Trump’s immunity simultaneously demand that President Joe Biden be prosecuted.
In practical terms, Trump is contending, as has been openly discussed in court, that a president could order SEAL Team Six to assassinate his political opponents and the only legal recourse would be impeachment in the Senate.
Trump’s appeal has been described as a ‘path to dictatorship’ and is counter to every tenet of America’s constitution, history and democracy. It should and would have been laughed out of any court in the land, and no Supreme Court in history would ever have considered taking up the case. Except this one, with its 6-3 conservative majority, which somehow deemed the matter worthy of debate.
Arguments in the case were greeted with much incredulity, but what the intervention has done, most crucially, is delay the Washington trial. Astonishingly, it appears that the case for trying to overturn the 2020 Election will not be able to commence until after the 2024 Election, in which the defendant is a leading candidate.
When Trump’s “total immunity” claim went before the Supreme Court, many of his political allies were overt in voicing their expectation that the justices Trump appointed would, naturally, rule in his favour. This week, they did just that, in a 6-3 ruling that will live in American infamy. The Justices of the Supreme Court were specifically asked whether a president could assassinate a political rival. This week, six of them said “Yes”.
In America’s long history, this level of executive immunity has never before been required. Now the court says that Donald Trump, alone, needs this form of protection. It’s very hard not to conclude that the Supreme Court took Trump’s appeal solely in order to delay his Washington trial and ruled on his immunity claim entirely on partisan lines.
With corrupt judges and two-thirds of the court in his pocket, it seems that yet another of America’s great institutions is now fatally corrupted and under Trump’s control. Trump is attempting to break the rule of law in America and should he take office again, it’s likely that the nation’s once-famed independent judiciary will entirely collapse under the onslaught.
A newly installed President Trump would be free to use the judicial system as a weapon, as he has vowed to do, all the while knowing that any action he takes will face no legal consequence. The incredible danger this poses to the survival of the Republic need not be elaborated.
Donald Trump’s Supreme Court appeal serves as a stunning example of his mindset and belief in what the power of the presidency should be. This lawless outlook shouldn’t come as a surprise. Back in 2016, Trump was boasting that his popularity was such that he could shoot someone in broad daylight. In 2018, as President, he asked then defence secretary Mark Esper to shoot unarmed American protesters in the street.
Trump has a long history of dictatorial tendencies but just to reiterate, Donald Trump believes that as president, he could literally get away with murder. Given Trump’s withering disdain for every other aspect of governance that gets in his way, Americans need to consider if anything would hold him back from acting on this belief, should he again win power.
The three remaining criminal cases against Donald Trump offered the American public an opportunity to really focus on the staggering misdeeds of the former President and to make informed decisions this November. If tried, we could find out details of just what Trump did during the riot on 6 January and what his nefarious allies like Roger Stone had prepared for. We’d discover how sensitive the top-secret documents were that Trump took, the reason he hid them from the FBI and possibly what he intended to do with them.
These would likely be some of the most sensational scandals in the history of the United States, revealing vital pieces of information for American voters to consider, so Trump’s success in delaying his criminal trials not only keeps him a free man, it dramatically increases his chances of success in the Election.
Denying voters this crucial information represents yet another successful cover-up by Donald Trump and his ability to escape legal consequence leaves us having to face an uncomfortable truth — Trump has successfully gamed the legal system once again and will contest the Election without having his manifest crimes revealed this year.
Trump now has the judiciary in his pocket and the Senate and Congress in slavish servitude. That’s two branches of American government. If Trump can win this November and get the third (the presidency) the the circle will be complete.
The courts are not going to save America; now only the voters can head off a dictatorial, imperial presidency. American democracy is hanging by the slenderest of threads.
This article to be continued next Friday, 12 June.
Read part one of ‘America's gathering storm’ here, part three here, part four here, part five here, part six here, part seven here and part eight here.
George Grundy is an English-Australian author, media professional and businessman. You can follow him on Twitter @georgewgrundy.
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